  
  
WT/DS510/R/Add.1  
 
27 June 2019 
(19-4306) Page: 1/97 
  Original: English  
 
  
 
UNITED STATES — CERT AIN MEASURES RELATIN G  
TO THE RENEWABLE ENE RGY SECTOR  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to E to the Report of the Panel to be found in document  
WT/DS510/R . 
 
 
_______________  
 WT/DS510/R/Add.1  
 
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LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 First i ntegrated executive summary of the arguments of India 11 
Annex  B-2 Second integrated executive su mmary of the arguments of India  22 
Annex B -3 First i ntegrated executive summary of the arguments of the United States  30 
Annex B -4 Second i ntegrated executive summary of the arguments of the United States  40 
 
ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex C -1 Integrated executive summary of the arguments of Brazil  48 
Annex C -2 Integrated executive summary of the arguments of China  50 
Annex C -3 Integrated executive summary of the arguments of the European Union  53 
Annex C -4 Integrated executive summary of the arguments of Japan  56 
Annex C -5 Integrated executive summary of the arguments of Norway  60 
 
ANNEX  D 
PRELIMINARY RULING O F THE PANEL  
Contents  Page  
Annex D -1 Preliminary Ruling of the Panel (27 September 2018)  63 
 
ANNEX  E 
INTERIM REVIEW  
Contents  Page  
Annex E -1 Interim Review  86 
 WT/DS510/R/Add.1  
 
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  ANNEX  A 
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
 WT/DS510/R/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES O F THE PANEL  
Adopted as amended on 27 June 20181 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidenti al information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) Nothing in the DSU or in these Working Procedures shall preclude a party or third party 
from disclosing statements of its own positions to the pu blic.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member,  provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  Non-confidential summaries 
shall be submitted no later than the relevant due dates for submitting integrated executive 
summaries set forth in the timetable adopted by  the Panel, unless a different due date is 
granted by the Panel upon a showing of good ca use. 
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with  the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the par ties, each party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, prior to the second substantive meeting of 
the Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission prior to the first substantive 
meeting of the Panel with the parties shall do so in accordance with the  timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions in the 
course of the proceeding, including with respect to requests for preliminary rulings.  
Preliminary rulings  
4. A party shal l submit any request for a preliminary ruling not later than its first written 
submission to the Panel. If the complaining party requests such a ruling, the respondent shall 
submit its response to the request in its first written submission. If the respond ent requests 
                                                
1 These Working Procedures were originally adopted on 6 June 2018. The amendment of 27 June 2018 
concerns paragraph 2(3).    WT/DS510/R/Add.1  
 
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  such a ruling, the complaining party shall submit its response to the request prior to the first 
substantive meeting of the Panel, at a time to be determined by the Panel in light of the 
request. E xceptions to this procedure may  be granted upo n a showing of good cause.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) Where the original language of an exhibit or portion thereof is not a WTO working 
language, the submitting party or third party shall simultaneously submit a translation of the 
exhibit or relevant portion into the WTO working language of the submission. The  Panel may 
grant reasonable extensions of time for the translation of exhibits upon a showing of good 
cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meetin g (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied 
by a detailed explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the mainte nance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover  page. Exhibits submitted by India should be numbered IND -1, IND -2, etc. Exhibits 
submitted by the United States should be numbered USA -1, USA -2, etc. If the last exhibit in 
connection with the first submission was numbered IND -5, the first exhibit in conn ection with 
the next submission thus would be numbered IND -6.  
(2) Each party shall provide a list of exhibits (in Word or Excel format) together with each 
of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document t hat has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in a ccordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Prior to any meeting, the Panel may send written questions, or a  list of topics it intends 
to pursue in questioning orally in the course of a meeting. The Panel may ask different or 
additional questions at the meeting.   
b. The Panel may put questions to the parties and third parties orally in the course of a 
meeting, and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel shall meet in closed session.   WT/DS510/R/Add.1  
 
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  11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall be responsible for all members of its delegation and shall ensure that 
each member of its delegation acts in accordance with the DSU and these Working Procedures, 
particularly with regard to the confidentiality of the proceeding and the submissions of the 
parties and third parti es.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days preceding the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to th e Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure the availability of 
interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall inv ite India to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the United States to present its point of view. Before each 
party takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its statement. In the event that interpretation is needed, each 
party shall provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is i nvited to limit the length of its opening statement to 75 minutes. If either party 
considers that it requires more time for its opening statement, it should inform the Panel and 
the other party at least 7 days prior to the meeting, and provide, at the same  time, an estimate 
of the length of its statement. The Panel will accord equal time to both parties for their 
statements.   
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other  party questions.  
d. The Panel may subsequently pose questions to the parties.  
e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with India presenting its statement first. Before each party 
takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its opening  statement no later 
than 5.00  p.m. (Geneva time) on the first working day following the meeting. At the 
same time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
ii. Each party shall s end in writing, within the timeframe established by the Panel 
prior to the end of the meeting, any questions to the other party to which it wishes to 
receive a response in writing.  
iii. The Panel shall send in writing, within the timeframe established by the P anel 
prior to the end of the meeting, any questions to the parties to which it wishes to receive 
a response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time -frame established by the Panel prior 
to the end of the meeting.  WT/DS510/R/Add.1  
 
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  16. The second substantive meeting of the Panel with the parties shall be conducted in the same 
manner as the first substantive meeting with the Panel, except that the United States shall be give n 
the opportunity to present its oral statement first. If the United States chooses not to avail itself of 
that right, it shall inform the Panel and the other party no later than 5.00 p.m. (Geneva  time) three  
working days day prior to the meeting. In that case, India shall present its opening statement first, 
followed by the United States. The party that presented its opening statement first shall present its 
closing statement first.  
Third party session  
 
17. The third parties shall be present at the meetin gs only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delega tion and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
19. A request fo r interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure availability of interpreters.  
20. (1) Each third par ty may present its views orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third party session, along with the list of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time) three working days preceding the first 
day of the third party session of the meeting with the Panel.  
21. The third -party session  shall be conducted as follows:  
a. All parties and third parties may be present during the entirety of this session.  
b. The Panel shall first hear the oral statements of the third parties. Each third party 
making an oral statement at the third -party sessi on shall provide the Panel and other 
participants with a provisional written version of its statement before it takes the floor. In the 
event that interpretation of a third party's oral statement is needed, that third party shall 
provide additional copies for the interpreters.  
c. Each third party should limit the length of its statement to 15 minutes, and avoid 
repetition of the arguments already in its submission. If a third party considers that it requires 
more time for its opening statement, it should i nform the Panel and the parties at least 7 days 
prior to the meeting, and it should also provide, at the same time, an estimate of the length 
of its statement. The Panel will accord equal time to all third parties for their statements.   
d. After the third  parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in that 
third party's submission or statement.  
e. The Panel may subsequently pose questions to any third party.  
f. Following the third -party session:  
i. Each third party shall submit the final written version of its oral statement, no 
later than 5.00  p.m. (Geneva time) on the first working day following the meeting.  WT/DS510/R/Add.1  
 
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  ii. Each party may send in writing,  within the timeframe to be established by the 
Panel prior to the end of the meeting, any questions to a third party or parties to which 
it wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established  by the 
Panel prior to the end of the meeting, any questions to a third party or parties to which 
it wishes to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to written questions 
from the Panel or a party, w ithin a timeframe established by the Panel prior to the end 
of the meeting.  
Descriptive part and executive summaries  
 
22. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executi ve summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of  the 
case.  
23. Each party shall submit two integrated executive summaries. The first integrated executive 
summary shall summarize the facts and arguments as presented to the Panel in the party's first 
written submission, its first oral statement, and wher e possible, its responses to questions following 
the first substantive meeting. The second integrated executive summary shall summarize its second 
written submission, its second oral statement, and where possible, its responses to the second set 
of questio ns and comments thereon following the second substantive meeting. The timing of the 
submission of these two integrated executive summaries shall be indicated in the timetable adopted 
by the Panel.  
24. Each integrated executive summary shall be limited to n o more than 15 pages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to que stions, if relevant. 
The executive summary to be provided by each third party shall not exceed six  pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the 
executive summary of that third party's ar guments.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Pan el. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. In the event that  no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written request for review, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other party' s written 
request for review.  
Interim and Final Report  
29. The interim report, as well as the final report prior to its official circulation, shall be kept 
strictly confidential and shall not be disclosed.  WT/DS510/R/Add.1  
 
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  Service of documents  
 
30. The following procedure s regarding service of documents apply to all documents submitted by 
parties and third parties in the course of the proceeding:  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047).   
b. Each party and third party shall submit two paper cop ies of its submissions and  two 
paper cop ies of its exhibits by 5.00 p.m. (Geneva time) on the due dates established by the 
Panel. The DS  Registrar shall stamp the documents with the date and time of  submission. The 
paper version submitted to the DS Registry shall constitute the official version for the purposes 
of submission deadlines and the record of the dispute.  
c. Each party and third party shall also provide an electronic copy of all documents i t 
submits to the Panel at the same time as the paper versions, preferably in both Microsoft  Word 
and PDF format, either on a CD -ROM, a DVD , or as an email attachment. If the electronic copy 
is provided by email, it should be addressed to DSRegistry@wto.org , and copied to othe r WTO 
Secretariat staff whose e mail addresses have been provided to the parties in  the course of the 
proceeding. If a CD -ROM or DVD is provided, it should be filed with the DS Registry.  
d. Each party shall serve any document submitted t o the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive meeting 
with the Panel directly on the third parties. Each third party shall serve any document 
submitted to the Panel directl y on the parties and on all other third parties. A party or third 
party may serve its documents on another party or third party by email , or on a CD -ROM or 
DVD, unless the recipient party or third party has previously requested a paper copy. Each 
party and  third party shall confirm, in writing, that copies have been served on the parties 
and third parties, as appropriate, at the time it provides each document to the Panel.  
e. Each party and third party  shall submit its documents with the DS Registry and ser ve 
copies on the other party (and third parties where appropriate) by 5.00 p.m. (Geneva  time) 
on the due dates established by the Panel.  
f.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In additi on to transmitting them to the parties by email, the Panel shall provide 
the parties with a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to corr ect clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in quest ion.  
 
 
 
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ANNEX  B 
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 First i ntegrated executive summary of the arguments of India 11 
Annex  B-2 Second integrated executive su mmary of the arguments of India  22 
Annex B-3 First i ntegrated executive summary of the arguments of the United States  30 
Annex B -4 Second i ntegrated executive summary of the arguments of the United States  40 
 
 WT/DS510/R/Add.1  
 
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  ANNEX  B-1 
FIRST INTEGRATED EXE CUTIVE SUMMARY OF TH E ARGUMENTS OF INDIA  
A. Introduction  
1. India has challenged eleven renewable energy programs of the United States providing certain 
incentives contingent upon the use of domestic goods over imported goods inconsistent with its 
obligations under the GATT 1994, the TRIMs Agreement and the SCM Agr eement.  
 
2. More specifically, India challenges the discriminatory measures maintained through the 
following sub -federal programs of the United States:  
 
(a) Washington Renewable Energy Cost Recovery Incentive Payment Program (" RECIP "); 
(b) California Sel f-Generation Incentive Program (" SGIP "); 
(c) Los Angeles Department of Water and Power's Solar Incentive Program (" LADWP SIP ");  
(d) Montana Tax Incentive for Ethanol Production (" MTIEP "); 
(e) Montana Tax Credit for Biodiesel Blending and Storage (" MTCB "); 
(f) Montana Tax Refund for Biodiesel (" MTRB "); 
(g) Connecticut Residential Solar Investment Program (" CRSIP ");  
(h) Michigan Renewable Energy Standards Program;  
(i) Delaware Renewable Energy Standards Program;  
(j) Minnesota Solar Incentive Program (" MSIP "); and  
(k) Massachusetts Commonwealth Solar Hot Water Program (" CSHWP "). 
 
B. Measures at Issue  
(a) RECIP  
3. RECIP was instituted by the State of Washington with a view to provide incentives for the 
greater use of renewable energy technologies/equipment ma nufactured locally, support existing 
local industries, create jobs for local industries and develop new opportunities for renewable energy 
industries in Washington.  
 
4. Pursuant to Chapter 82.16 of Revised Code of Washington (" RCW ") read with the Washingt on 
Administrative Code (" WAC 458 -20-273"), the measures at issue provide that generation of 
electricity using renewable energy equipment consisting of certain specified inputs/ components 
manufactured in Washington will result in entitlement to additional incentives. The key elements of 
the program are as follows:  
 
(i) Any individual, business, local government entity (which is not in the light and power 
business or in the gas distribution business) or a participant in a community solar project 
may apply to the light and power business for investment cost recovery incentive for 
each kilowatt -hour of electricity produced from a customer -generated electricity 
renewable energy system;  
 
(ii) The investment cost recovery incentive amount is calculated by multiplying appropriate 
base rate by the applicable economic development factor and the product thereof is then 
multiplied by the gross kilowatt -hours. The economic development factor has been 
statutorily specified and is based on "in -state manufacture lev el" of the renewable 
energy system. If the specified components used in a renewable energy system are 
manufactured in Washington state, the economic development factor is higher than in 
cases where the components are not manufactured in Washington state;  
 
(iii) The investment cost recovery incentive is paid by the appropriate light and power 
business serving the situs of the system in accordance with the applicable laws; and  
 
(iv) The light and power business, in turn, is allowed to claim tax credit from t he Department 
of Revenue against its public utility taxes in an amount equal to the incentive payments 
made to its customers or participants in a nonutility solar project in any fiscal year.  WT/DS510/R/Add.1  
 
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5. Some of the provisions of the RCW were modified pursuant to t he Substitute Bill 5939 (" 2017 
Amendment Act ") with effect from 7 July 2017. However, these changes do not alter or modify the 
essence of the measures at issue.  
 
6. India takes issue with the additional investment cost recovery incentives provided by the State 
of Washington for generating electricity contingent upon the use of domestic over imported goods 
under the RECIP.  
 
(b) SGIP  
7. California Public Utilities Commission (" CPUC ") instituted the SGIP to initiate load control and 
distributed generation act ivities. CPUC directed investor -owned utilities to administer SGIP. These 
utilities, which act as Program Administrators, issue the SGIP Handbook from time to time. The most 
recent version was issued on 18 December 2017 (" 2017 SGIP Handbook "). This 2017 SG IP 
Handbook was preceded by the SGIP handbook dated 8 February 2016 (" 2016 SGIP Handbook "). 
Both the Handbooks explain that the SGIP provides "financial incentives for the installation of new 
qualifying technologies that are installed to meet all or a port ion of the electric energy needs of a 
facility".  
 
8. The Handbooks marginally differ in terms of the kinds of incentives provided to the applicants 
as well as the types of technologies that can avail these incentives. The 2016 SGIP Handbook offered 
an add itional incentive of 20% for the installation of eligible distributed generation or AES 
technologies from a "California Supplier". Further, the 2016 SGIP Handbook provided that the 20 
percent adder for using a California Supplier would be calculated on the  non-renewable incentive 
rate before adding the additional $1.31 per watt incentive for using biogas. Applicants using the 
specified equipment's were eligible to receive the 20% additional incentives (" California 
Manufacturer Adder ") offered under the prog ram.  
 
9. The criteria for providing incentives underwent minor modifications in the 2017 SGIP 
Handbook. Presently, SGIP offers three types of incentives to eligible applicants: generation 
incentive rates; energy storage incentive rates; and, incentives fo r technologies from a California 
manufacturer (also, " California Manufacturer Adder ").  
 
10. Under the 2017 SGIP Handbook, additional incentive of 20% is added to the technology 
incentive for projects in which the equipment used is manufactured in Californ ia. In order for a 
project to be eligible for the 20% adder, it must demonstrate that at least 50% of its capital 
equipment value is manufactured by an approved California Manufacturer. Therefore, the California 
Manufacturer Adder is provided to applicants  for generating electricity contingent upon the use of 
the eligible equipment manufactured in California.  
 
(c) LADWP SIP  
11. Los Angeles Department of Water and Power (" LADWP "), a public utility, introduced the Solar 
Incentive Program (" SIP") in 2000. In September 2007, the Board of Commissioners of LADWP 
approved the SIP Guideline Revisions to comply with California's Senate Bill 1 (" SB 1").  
 
12. The SIP provides an estimated performance -based incentive to LADWP customers that install 
solar photovoltaic systems. These incentives provide payment to customers that purchase or lease 
solar photovoltaic systems generating electricity for their home or business while still being 
connected to the city of Los Angeles' power -grid. Further, as per the design of the  scheme, the levels 
of incentive provided decline when pre -determined megawatt (" MW") targets of the scheme are 
fulfilled.   
 
13. The SIP is only open to LADWP customers. The solar photovoltaic systems have to be 
connected to the LADWP's electrical grid. A n applicant of the SIP has the option of retaining 
ownership of the RECs or selling them to LADWP.  
 
14. Besides other incentives, the SIP also provides additional incentive payments for solar 
photovoltaic modules that are manufactured in Los Angeles, Calif ornia. This origin -based incentive 
credit is termed as Los Angeles Manufacturing Credits (" LAMC ").  
 WT/DS510/R/Add.1  
 
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  15. In order to qualify for LAMC, owners of the PV modules and solar power equipment have to 
demonstrate that a minimum of 50% of the components of the fin ished solar photovoltaic modules 
or the qualifying equipment were manufactured and/or assembled within the city of Los Angeles, 
California.  
 
16. After the manufacturer receives LAMC -status, related payments are released to the 
customers. These payments ar e made from the Public Benefits Funds for Renewables and Efficiency 
("PBFRE "). PBFRE is a public fund that is administered by California Energy Commission (" CEC"). 
LADWP budgets an average of USD 30 million per fiscal year to fund SIP for direct incentive payments 
from the PBFRE.  
 
(d) MTIEP  
17. Designed to stimulate the development of ethanol production in Montana, MTIEP was 
introduced by the Ethanol Tax Incentive and Administration Act of 1983 and is administered by the 
Montana Department of Transportatio n. Tax incentives under the MTIEP are available for producers 
of ethanol blended gasoline and are paid from the tax imposed on the distributors of gasoline and 
the special fuel tax collected by the Department as per rates specified under Section 15 -70-403 of 
the MAC.  
 
18. Pursuant to the Montana Annotated Code 2015 (" MCA") particularly, Sections 15 -70-501 to 
15-70-527, Montana's MTIEP provides tax incentives to ethanol producers for distilling alcohol, 
contingent and proportionate to the use of Montana agri cultural products, including Montana wood 
or wood products. The tax incentive on each gallon of ethanol distilled is 20 cents a gallon for each 
gallon that is 100% produced from Montana products. Tax incentives are also available when non -
Montana based agr icultural or wood products are used in the ethanol production. However, in such 
cases, the amount of tax incentive is reduced in a proportionate manner, based on the amount of 
agricultural or wood products not produced in Montana that is used in the produc tion of the ethanol.  
 
19. India takes issue with the tax incentives which is provided to ethanol producers for distilling 
alcohol, contingent and proportionate to the use of Montana agricultural products, including Montana 
wood or wood products.  
 
(e) MTCB  
20. Pursuant to Section 15 -32-703 of the MCA, MTCB provides certain credit against taxes to an 
individual, corporation, partnership, or small business corporation for tax imposed on cost of 
investments in depreciable property used for storing or blending b iodiesel with petroleum diesel for 
sale, provided that the biodiesel is entirely made from Montana produced feedstock. MTCB is 
administered by the Montana Department of Revenue.  
 
21. The tax credit can be claimed by a special fuel distributor or an owner o r operator of a motor 
fuel outlet for the costs incurred in the 2 tax years before the taxpayer begins blending biodiesel 
fuel for sale or in any tax year in which the taxpayer is blending biodiesel fuel for sale.  
 
22. India takes issue with the tax credi t which is provided against individual tax or corporate tax 
for costs of investments in depreciable property used for storing or blending biodiesel with petroleum 
diesel for sale, provided the biodiesel is produced entirely from Montana feedstock.  
 
(f) MTRB  
23. The state of Montana provides certain refund on special fuel tax to: (i) a licensed distributor; 
and (ii) an owner or operator of a retail motor fuel outlet who purchased the biodiesel from a licensed 
distributor and on which the special fuel tax has been paid, provided that the biodiesel is produced 
entirely from biodiesel ingredients produced in Montana. The scheme is administered by the Montana 
Department of Transportation.  
 
24. As per Section 15 -70-403 of the MCA, the special fuel tax is payabl e by any distributor of 
special fuel i.e. biodiesel for the privilege of engaging in and carrying on business in Montana. The 
total amount of tax refund that a distributor can claim is 2 cents a gallon, while an owner or operator 
of a retail motor fuel out let may claim a refund equal to 1 cent a gallon on biodiesel. Tax refund 
payments under this measure are statutorily appropriated from the state general fund.  
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  (g) CRSIP  
25. Pursuant to Connecticut's Public Act 15 -194, a financial incentive is offered for  the purchase 
or lease of qualifying residential solar photovoltaic systems. Depending on the models of ownership 
of the solar photovoltaic system, there are two distinct kinds of direct financial incentives offered 
under the CRSIP: performance -based incen tive (" PBI"); and expected performance -based buy -
down (" EPBB ").  
 
26. Under both types of incentives, homeowners are offered additional incentives of up to 5% of 
the applicable incentive amount provided that 'major system components' are manufactured or 
assembled in Connecticut. Further, another additional incentive of up to 5% of the applicable 
incentive would be provided for the use of major system components manufactured or assembled 
in a distressed municipality, or a targeted investment community as def ined by the Connecticut 
General Statute.  
 
27. CRSIP is administered by Connecticut's Green Bank which is responsible for supporting and 
developing programs that promote clean energy. Notably, while the component of the additional 
incentive is available for  both EPBB and PBI, EPBB and PBI payments cannot be combined for a 
single project under the CRSIP.  
 
(h) Michigan Renewable Energy Standards Program   
28. Clean, Renewable and Efficient Energy Act, Public Act 295 of 2008 (" PA 295 ") renamed as 
Clean and Rene wable Energy and Energy Waste Reduction Act by an amendment through Public Act 
342 of 2016 (" PA 342 ") prescribes certain renewable energy standards in the State of Michigan. 
Section 28 of PA 342 mandates electric providers (i.e. municipally -owned electric utilities, co -
operative electric utilities, alternative electric suppliers and any commission -regulated person or 
entity which sell electricity to retail customers in Michigan) to achieve the specified renewable energy 
standards.  
 
29. It aims to generate n ot less than 35% of Michigan's energy need through a combination of 
energy waste reduction and renewable energy by 2025 and encourage private investment in 
renewable energy, among others.  
 
30. In order to promote renewable energy, it provides certain Rene wable Energy Credits (" REC") 
to electric providers. It also provides certain additional credits called Incentive Renewable Energy 
Credits (" IREC ") to electric providers. The following two categories of IRECs are pertinent:  
 
(i) 1/10 renewable energy credit  for each MWh of electricity generated from a renewable energy 
system constructed using equipment made in this state as determined by the MPSC 
("Michigan Equipment Multiplier ") The additional credit under this subdivision is available 
for the first 3 years after the renewable energy system first produces electricity on a 
commercial basis.  
 
(ii) 1/10 renewable energy credit for each megawatt hour of electricity from a renewable energy 
system constructed using a workforce composed of residents of this state as determined by 
the MPSC (" Michigan Labour Multiplier ") The additional credit under this su bdivision is 
available for the first 3 years after the renewable energy system first produces electricity on 
a commercial basis.  
 
31. The RECs and IRECs may be used to meet the renewable energy credit standards. MIRECS, 
which was set up by the MPSC, issues , tracks, and enables retirement and trading of RECs generated 
from renewable energy systems.  
 
(i) Delaware Renewable Energy Standards Program  
 
32. The Renewable Energy Portfolio Standard Act, 2005 as incorporated in the Delaware Code 
("RESPA ") prescribes  certain renewable energy portfolio standards to incentivize the use of 
renewable sources of energy. RESPA authorizes the Delaware Public Service Commission (" DPSC ") 
to determine, verify and assure compliance with the standards. To implement these standard s, DPSC 
framed the Rules and Procedures to Implement the Renewable Energy Portfolio Standard, 2005 
("REPSA Rules "). Specifically, REPSA sets a standard which requires that the retail electricity 
suppliers must procure an increasing percentage of their elec tricity from renewable sources each WT/DS510/R/Add.1  
 
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  year with the eventual aim of generating a minimum of 25% of all energy produced in Delaware 
from renewable sources by 2025.  
 
33. To track and verify compliance, RESPA provided for the use of accumulated RECs or solar 
renewable energy credits (" SRECs ") by retail electricity suppliers could for meeting the standards. 
Suppliers could also sell or transfer any RECs or SRECs in excess of those needed to meet the 
standards. Therefore, both RECs and SRECs were designed to work as tradable instruments 
equivalent to 1 megawatt -hour of retail electricity sales in Delaware derived from eligible energy 
resources.  
 
34. The incentives under this program are provided to retail electricity suppliers in Delaware in 
terms of  10% addition al RECs and SRECs if: (a) a minimum of 50% of the cost of the renewable 
energy equipment comprising the generation unit (including mounting components) is manufactured 
in Delaware (" Delaware Equipment Bonus "); and (b) the generation unit is constructed and /or 
installed either with a workforce at least 75% of whom are Delaware residents or by a company that 
employs at least 75% Delaware residents (" Delaware Workforce Bonus "). Retail electricity 
suppliers that meet both criteria are entitled to an aggregate 2 0% bonus.  
 
(j) MSIP  
35. Pursuant to the Minnesota Statute (2016), particularly MINN. STAT. 216C.411 through 
216C.416 and MINN. STAT. 116C.7791, Minnesota provides for the following three types of 
incentives for the use of solar system or components manufac tured in Minnesota.  
 
36. "Made in Minnesota" Solar Energy Production Incentive (" SEPI "): SEPI is designed to provide 
incentives and rebates to the end -consumers of the public electric utilities that install solar PV 
modules and solar thermal systems, respe ctively, certified as "Made in Minnesota". Under MINN. 
STAT. 216C.411 to 216C.415, the incentive offered is in the nature of "performance -based financial 
incentive expressed as a per kilowatt -hour amount" which is provided only to an owner of solar PV 
modu les. 
 
37. Rebate for installation of Solar Thermal Systems : In addition to the SEPI, certain rebates are 
offered for installation of "Made in Minnesota" solar thermal systems pursuant to MINN. STAT. 
216C.416, subdiv. 2. The rebate refunds certain cost of i nstallation of a solar thermal system to the 
owners who install the same on their residential or commercial property. The rebates are available 
for solar thermal systems which are installed in residential or commercial property/facilities which 
are used fo r, inter alia, hot water, space heating, or pool heating purposes.  
 
38. Rebate for Solar PV Modules : Pursuant to MINN. STAT. 116C.779, rebates are also offered to 
an owner of a qualified property for installation of solar PV modules. To be eligible for a rebate, the 
solar PV modules must be "Made in Minnesota" and the applicant must have been awarded financial 
assistance available exclusively to owners of properties that is offered by: (a) the utility serving the 
property on which the solar PV modules are to be installed; or (b) by the State of Minnesota, under 
an authority other than MINN. STAT. Section 116C. 7791.761 976. However, an applicant who is 
otherwise ineligible for the rebate by reason of not having been awarded any other form of financial 
assistance described above, is eligible if the applicant's failure to secure such assistance is solely 
due to a lack of available funds with a utility.  
 
39. All the three types of incentives under the MSIP  have one feature in common – the 
requirement that the product qua which the incentive or the rebate has been claimed viz., solar PV 
modules and solar thermal systems should fulfil the criterion of being "Made in Minnesota" i.e. 
manufactured in the State o f Minnesota.  
 
(k) Massachusetts Commonwealth Solar Hot Water Residential Program  
40. The Massachusetts Commonwealth Solar Hot Water Residential Program and the 
Massachusetts Commonwealth Solar Hot Water Commercial Program (collectively, the 
Massachusetts Commonwealth Solar Hot Water Program or " CSHWP ") are two separate programs 
that are administered by the Massachusetts Clean Energy Centre (" MassCEC "), a public body.   
 
41. MassCEC authorized USD 10 million budget for the CSHWP. This amount will be utilize d by 
providing incentives in the form of rebates to customers that install solar hot water (" SHW ") systems 
between 2012 through 2020.  WT/DS510/R/Add.1  
 
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42. Applications under the Massachusetts Commonwealth Solar Hot Water Residential Program 
are limited to "residential pr ojects serving one to four units and small -scale commercial, industrial, 
institutional, or public projects that have eight or fewer solar hot water collectors". Similarly, 
applications under the Massachusetts Commonwealth Solar Hot Water Commercial Program  are 
permitted for "multi -family projects serving five or more units and for commercial, industrial, 
institutional, and public projects with more than eight collectors". Further, these incentives are only 
provided upon fulfilling specified procedures and t erms and conditions that are listed under the 
program manuals for both schemes.   
 
43. Besides these rebates and incentives, the CSHWP also provides the " Massachusetts 
Manufacturer Adder ". The eligibility criteria for this adder requires the system to use "eligible 
Massachusetts manufactured components". System owners that seek to apply for this incentive are 
required to submit photographs of the system components that are manufactured in Massachusetts. 
Upon confirmation by MassCEC, the successful system ow ners are granted the adder of USD 200.  
B. Legal Claims  
1. The measures at issue are inconsistent with the United States' national treatment 
obligation under Article III:4 of the GATT 1994.  
 
44. India submits that domestic content requirements, as a form of discrimination between 
domestic and imported products, are contrary to the basic principle of national treatment enshrined 
in Article III:4 of the GATT 1994. It is well established that for a m easure to be inconsistent with 
national treatment obligation of Article III:4 of the GATT, three elements need to be shown: first, 
the imported and domestic products in question are 'like' products. Second , the measure is a "law, 
regulation, or requirement  affecting their internal sale, offering for sale, purchase, transportation, 
distribution, or use". Third, the imported products are accorded "less favourable" treatment than 
that accorded to "like" domestic products. India has demonstrated that the measur es at issue meet 
all these requirements.      
 
(a) Imported and domestic products at issue are "like" products  
 
45. India submits that the only distinguishing criteria for obtaining the additional/ higher 
incentives under each of the measures at issue is w hether or not certain specified components/ 
products are of United States -origin. The WTO jurisprudence is clear that if origin is the sole 
distinguishing criteria between the imported and the domestic products, such products are "like" 
products within the  meaning of Article III:4 of the GATT 1994. Accordingly, under each of the 
measures at issue, India has identified relevant imported products and the domestic products which 
are "like" for the purposes of Article III:4 of the GATT 1994.  
 
(b) The measures a t issue are 'laws, regulations and requirements' that affect 
internal sale, offering for sale, purchase, transportation, distribution, or use'.  
 
46. The WTO jurisprudence shows that the phrase 'laws, regulations or requirements' have been 
interpreted broad ly.  Notably, for a governmental policy or action to fall within the scope of 'laws, 
regulation or requirement', it need not necessarily have a substantially binding or compulsory nature. 
The measures at issue are laws, regulations and/or requirements whic h affect the internal sale, 
offering for sale, purchase or use of the imported "like" products in the United States within the 
meaning of Article III:4 of the GATT 1994:  
 
• RECIP : The measures at issue are law, regulations and/or requirements. More specifically, 
RCW 82.16.110 through RCW 82.16.130 and the WAC 458 -20- 273 are clearly legislative 
enactments. Together, they enable individuals, businesses,  local government entities (n ot 
in the light and power business) and/or participants in community solar projects to avail 
investment cost recovery incentive upon fulfilling specified procedures and terms and 
conditions.   
 
• SGIP: The measures at issue are implemented through several l egal instruments including 
the Public Utilities Code and the Handbooks. The Public Utilities Code and the Handbooks are 
laws, regulations and/or requirements. For example, the California Manufacturer Adder is a 
result of the 2006 Amendment to Section 379.6  of the Public Utilities Code.  
 WT/DS510/R/Add.1  
 
- 17 - 
 
  • MTIEP : The measures at issue are laws, regulations and/or requirements. The provisions of 
the MCA (in particular Section 15 -70-501 till Section 15 -70-527) are laws which have been 
passed by the legislature of the State of  Montana.  
 
• MTCB : The measures at issue emanate out of the act of the legislature of Montana (i.e. 15 -
32-703, MCA) and therefore, are laws, regulations and/or requirements.  
 
• MTRB : The measures at issue emanate out of the act of the legislature of Mont ana (i.e. 
Section 15 -70-403, MCA) and therefore, are laws, regulations and/ or requirements.  
 
• CRSIP : The measures at issue emanate from legislative act of the State of Connecticut (in 
particular, the 2016 Supplement to the General Statute of Connecticut , Title 16, Chapter 
283, Section 16 -245ff) and, therefore, clearly qualify as laws.  
 
• Michigan Renewable Energy Standards Program : The measures at issue are laws, regulations 
and/or requirements. PA 342 and its predecessor, PA 295, are public legislations  that are 
passed and enacted in conformity with the legislative process that a bill must go through 
before it is enacted into law in the United States. The MPSC formulates rules regarding 
renewable energy standards compliance based on the authority provide d to it by PA 342. 
Procedural issues such as the application for registering with MIRECS, which are 
"requirements", also flows from provisions laid out in PA 342.  
 
• Delaware Renewable Energy Standards Program : The measures at issue are laws, regulation 
and/or requirements. The measures at issue are implemented through the REPSA which is 
a state law that was passed by the General Assembly of Delaware. The RESPA Rules are 
"regulations" which were enacted to implement the measures at issue, among others. 
Further, the REPSA and the REPSA Rules together provide "requirements" such as eligibility 
criteria and application guidelines which must be fulfilled to obtain the additional incentives.  
 
• Minnesota : The measures at issue are laws, regulations and/or requirements since they arise 
from the act of the legislature of Minnesota (in particular, Minnesota Statute Section 
216C.411 through 216C.416, and Section 116C.7791).   
 
47. The WTO jurisprudence clarifies that the term "affect" should be understood to ha ve a broad 
scope of application. In particular, the panel in Canada – Autos  has held that a measure which 
provides that an advantage can be obtained by using domestic products but not by using imported 
products has an impact on the conditions of competitio n between domestic and imported products 
and thus affects the "internal sale,… or use" of imported products. Accordingly, each of the measures 
at issue affect the internal sale, offering for sale, purchase or use of the imported products.  
 
48. Further, act ual implications of a discriminatory measure in the marketplace, as the United 
States seems to argue, is not required to be demonstrated by a complaining party. In this regard, 
the Appellate Body report in US – FSC (Article 21.5 – EC) stated "[A]t the same  time, however, the 
examination need not be based on the actual effects of the contested measure in the marketplace". 
Further, the Appellate Body in Thailand – Cigarettes (Philippines) , has stated that an analysis under 
Article III:4 must begin with carefu l scrutiny of the measure, including consideration of the design, 
structure, and expected operation of the measure at issue. Such scrutiny may well involve – but 
does not require  – an assessment of the contested measure in the light of evidence regarding t he 
actual effects of the measure in the market place (emphasis added). The panel in Canada – Autos  
rejected Canada's argument that domestic content requirement were "so low" that they do not in 
practice 'affect' the market conditions.   
 
(c.)  'treatment no less favourable'.   
 
49. India contends that all the identified measures at issue accord less favourable treatment to 
the imported products than that accorded to the "like" products of United States -origin. India 
submits that by incentivizing the use of the specified components/ products manufactured in the 
United States and thereby denying the effective equality of opportunity to the imported products to 
compete in the domestic market in the relevant State in the United States.  
 
50. Given tha t the measures at issue incentivizes the use of certain specified products 
manufactured in United States, the imported products do not get the equality of opportunity to WT/DS510/R/Add.1  
 
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  compete in the domestic market of one of the States that provides the challenged incen tives. The 
measures at issue, therefore, also modify the conditions of competition to the detriment of the 
imported products and in favour of the "like" products of these States in the United States.  
 
51. Therefore, only products originating in the United  States can satisfy the conditions or 
requirements to receive certain additional or incremental incentives. Imported "like" products cannot 
satisfy the origin requirements, and thus can never qualify for those incentives. Consequently, 
imported products ar e treated less favourably than the "like" products of domestic origin with respect 
to their "purchase", "sale" or "use".  
2. The measures at issue are inconsistent with the United States' obligations under the 
TRIMs Agreement.  
 
52. India has made two separ ate claims for each of the measures at issue under the TRIMs 
Agreement: first, India has argued that each of the measures at issue is inconsistent with Article 2.1 
of the TRIMs Agreement; second , although not needed, India has demonstrated that the measure s 
at issue also fall within the scope of Article 2.2 read with paragraph 1(a) of the Illustrative List of 
the TRIMs Agreement.  
 
(a.)  The measures at issue are inconsistent with Article 2.1 of the TRIMs 
Agreement.   
 
53. India submits that the measures at issue are inconsistent with Article 2.1 as they are trade 
related investment measures that are inconsistent with Article III:4 of the GATT 1994. A violation 
of Article 2.1 of the TRIMs Agreement is established by demonstrating two elements: (i) the 
existen ce of an investment measure related to trade in goods (i.e., a TRIM); and (ii) the 
inconsistency of that measure with Article III or Article XI of the GATT 1994.  
 
54. Since India has already established the second element, i.e. the measures at issue are 
inconsistent with Article III:4 of the GATT 1994, it proceeds to establish the first element, i.e. that 
the measures at issue are TRIMs within the meaning of Article 1 of the TRIMs Agreement. More 
specifically, India shows that the measures are "trade relat ed" "investment measures".   
 
55. As regards "trade related", India submits that since the measures at issue are local content 
requirements, they would necessarily be "trade -related" because such requirements, by definition, 
always favour the use of domest ic products over imported products, thereby affecting trade. As 
regards "investment measures", India recalls that the several panels have analyzed the aims and 
objectives of a measure to determine if it qualifies as an "investment measure". For example, th e 
panels in Indonesia – Autos, Canada – Renewable Energy  and India – Solar Cell s analyzed the 
objectives of the challenged measure to conclude if the measures were "investment measures".  
 
56. It is India's contention that the measures at issue in the present dispute are aimed to provide 
incentives, inter alia , for the greater use of r enewable energy technologies/equipment manufactured 
locally, support existing local industries, create jobs for local industries and new opportunities for 
renewable energy industries to develop in the relevant United States jurisdictions. Therefore, each 
of the measures at issue are necessarily trade -related investment measures (i.e. TRIMs).  
 
57. The United States argues that the TRIMs Agreement concerns itself only with measures that 
impose requirements or conditions on purchase, use, importation, or expor tation of goods by an 
"enterprise". In other words, the United States seems to suggest that a trade related investment 
measure must necessarily be defined with reference to an "enterprise". It draws this conclusion 
primarily on the basis of reference to th e term "enterprise" in Article 5 and the Illustrative List of 
the TRIMs Agreement. Notably, the United States seemingly does not dispute that the measures at 
issue are TRIMs. Rather, it argues that those measures at issue that do not impose requirements on  
an "enterprise" are outside the scope of the TRIMs Agreement.  
 
58. India fundamentally disagreed with the United States that a TRIM must necessarily be 
understood with reference to an "enterprise". Neither the text, context and the object of the TRIMs 
Agreement nor the WTO jurisprudence supports this interpretation introd uced by the United States. 
First, contrary to what the United States' notes, the TRIMs Agreement does not define a trade related 
investment measure or otherwise specify the scope of that term. Second , the text of Article 1 of the 
TRIMs Agreement, which dea ls with the coverage  of the Agreement, does not, in any manner, restrict 
the scope of a TRIM. To the contrary, Article 1 is widely worded with no reference to the term WT/DS510/R/Add.1  
 
- 19 - 
 
  "enterprise". Third, the TRIMs Agreement limits the prohibited categories of TRIM and no t the 
definition of TRIM itself. Fourth , even the language in Article 5.5 of the TRIMs Agreement on which 
the United States relies, does not state that a TRIM must impose requirements or conditions on an 
enterprise. Fifth, the reference to the term "enterp rise" in the Illustrative List is unhelpful. The 
Illustrative List, by its very name, is illustrative in nature and not exhaustive. Previous panels have 
recognised that there could be other types of TRIMs that are inconsistent with Article III:4 of the 
GATT 1994.  
 
(b.)  The measures at issue also fall within the scope of Article 2.2 read with 
paragraph 1(a) of the Illustrative List of the TRIMs Agreement.  
59. As India has already demonstrated that the measures at issue are: first, inconsistent with 
Article  III:4 of the GATT 1994; second , trade -related investment measures; and third, inconsistent 
with Article 2.1 of the TRIMs Agreement, it is not necessary to prove that the measures at issue 
under fall within the scope of Article 2.2 of the TRIMs Agreement a nd in particular under paragraph 
1(a) of the Illustrative List of the TRIMs Agreement. That being said, India, for the sake of 
completeness, also establishes that the measures at issue fall within the scope of Article 2.2 of the 
TRIMs Agreement and, in par ticular, under paragraph 1(a) of the Illustrative List of the TRIMs 
Agreement.  
 
60. India notes that the measures at issue require use or purchase of specified products of 
domestic origin by an enterprise and the compliance with the measures at issue is n ecessary to 
obtain an advantage. For example, under the RECIP, in order to obtain an advantage (e.g. additional 
incentive), it is necessary that certain specified products of Washington -origin are used.  
 
61. It seems to be the United States' understanding  that paragraph 1(a) of the Illustrative List 
would trigger only if an enterprise that uses or purchases domestic products is the one that obtains 
an advantage. Further, the United States seems to argue that the term enterprise covers only a 
'business firm ' or 'company'. As a result, the United States extrapolates this to argue that for a 
measure to fall under the TRIMs Agreement, it must require the recipient of an advantage to be an 
enterprise.  
 
62. India disagrees with the above characterizations. First, the term "enterprise" cannot be 
restricted in a manner as has been suggested by the United Sates. It must be interpreted in context 
and object of the TRIMs Agreement. In such context, the term "enterprise" must be viewed akin to 
engagement in an economic  activity. Viewed in such manner, the term "enterprise" would include 
natural persons who engage in any economic activity such as purchasing a renewable energy 
equipment from a firm to receive incentives offered by a government.  
 
63. Second , even if the te rm "enterprise" is given a restrictive meaning, the measures at issue 
are covered under paragraph 1(a) of the Illustrative List. There is no requirement that an enterprise 
that uses or purchases domestic products is the one that obtains an advantage. The u se of the word 
"and" clearly shows that Paragraph 1(a) has two separate requirements. It does not say that the 
advantage must be obtained by the very same enterprise which uses or purchases a product of 
domestic origin, as the United States seems to claim.  Each of the measures at issue satisfy these 
two separate elements of Paragraph 1(a) of the Illustrative List. For example, under the RECIP, in 
order to obtain an advantage, a person (whether individuals, businesses, local government entities 
with few exce ptions) must use a renewable energy equipment made of certain specified components 
manufactured in Washington. This satisfies the first element of necessity to fulfil certain conditions 
to obtain an 'advantage'. The measures at issue under RECIP require th at certain specified 
components manufactured in Washington be used by an enterprise in manufacturing the relevant 
renewable energy equipment. This satisfies the second element, i.e. 'purchase or use by an 
enterprise.'  
 
64. Third, assuming arguendo, the enterprise using or purchasing the product of domestic origin 
must obtain an advantage, the same is also fulfilled under each of the measures at issue given the 
established legal position that the term "advantage" must be widely interpreted. Therefore, an 
advantage under paragraph 1(a) would include indirect benefits by way of pass -through from a 
purchaser or additional sales.  
 WT/DS510/R/Add.1  
 
- 20 - 
 
  3. The measures at issue are inconsistent with the United States' obligations under the 
SCM Agreement.  
 
65. India cl aims that the measure at issue (except the Delaware Workforce Bonus and Michigan 
Labour Multiplier) constitute import substitution (or local content) subsidies which inconsistent with 
Article 3.1(b) read with Article 3.2 of the SCM Agreement.  
 
(a)  The measures at issue are "subsidies" that are inconsistent with Article 
3.1(b) read with Article 3.2 of the SCM Agreement.  
 
66. More specifically, in order to establish a violation of Articles 3.1(b) and 3.2 of the SCM 
Agreement, three elements must be sa tisfied: first, the existence of a subsidy, i.e. there is a financial 
contribution by a government or any public body within the territory of a Member and a benefit is 
thereby conferred; second , the subsidy must be specific; and third, the grant of subsidy  is contingent 
upon the use of domestic over imported goods.  
 
67. India recalls that for a subsidy to exist, two elements must be proved: first, a financial 
contribution by a government or a public body; and second , a benefit is conferred.  
 
(i) Financial  Contribution  
 
68. A measure may constitute a financial contribution in one or more ways as set out in Article 
1.1(a)(1) of the SCM Agreement. India submits that the measures at issue constitute financial 
contribution in the form of direct transfer of fund s, revenue forgone which is otherwise due, and/ or 
provision of goods, as may be relevant.  
 
69. Specifically, India submits that ten out of the eleven programs constitute a direct transfer of 
funds by the government or by a public body under Article 1.1(a )(1)(i) of the SCM Agreement or 
through entrustment or direction under Article 1.1(a)(1)(iv) of the SCM Agreement. Examples of 
such transfers of funds include the payment of certain incentive directly or indirectly through 
intermediaries. In some case, the  transfer of funds may also be through entrustment or direction to 
private bodies.  
 
70. Further, India argues that three of the eleven programs also provide a financial contribution 
in the form of revenue foregone (in addition to a direct transfer of fund s) and that the financial 
contribution of one program exclusively consists of revenue foregone which is otherwise due.  
 
71. Lastly, India claims that two programs provide for a financial contribution (as an alternative 
to the direct transfer of funds) in t he form of the provision of goods under Article 1.1(a)(1) of the 
SCM Agreement in the form of tradeable certificates that are granted to beneficiaries at nil price.   
 
72. The United States has made a generic argument that India has failed to make a prima facie 
case that the measures at issue involve a financial contribution because it failed to provide evidence 
of actual contribution. India does not consider that the actual evidence of financial contribution under 
the measures at issue is relevant for the Panel to assess WTO -inconsistency of the measures. A 
complaining WTO Member cannot be required to wait till such time that actual contributions are 
made for the first time under a subsidy measure before being able to bring a WTO dispute. The 
obligation tha t a Member "neither grant nor maintain subsidies", referred to in Article 3.1 provides 
relevant context confirming that Article 1.1(a)(1), may encompass commitments by the 
government, e.g. to forego revenue that would otherwise be due or to transfer funds.  If a "subsidy" 
could not be deemed to exist until government revenue is actually foregone or a transfer of funds is 
actually made, the reference in Article 3.2 to "maintain[ing] subsidies" would be redundant. Article 
3.2 clarifies that “maintain[ing]” a s ubsidy programme tied to the prohibited contingencies may 
violate the SCM Agreement, even when the financial contribution is yet to be “grant[ed]”, i.e. is not 
yet actually disbursed.      
 
(ii) Benefit  
 
73. The second and final element of a subsidy is tha t the financial contribution must confer a 
benefit. A benefit may be conferred on one or more natural or legal persons. Further, a benefit may 
be conferred on a person different than the who is the direct recipient of the financial contribution.  
 WT/DS510/R/Add.1  
 
- 21 - 
 
  74. India has identified two sets of beneficiaries: (i) direct recipients of financial contribution; and 
(ii) local manufacturers of renewable energy system/equipment (which contains the specified 
incentivised components) or "indirect beneficiaries". Notably, India does not use the terms "direct 
beneficiary" or "indirect beneficiary" as legal concepts; rather they are terms of nomenclature used 
for identification purposes.   
 
75. As regards the direct beneficiaries, India has shown that a benefit has been confe rred through 
the grant of the financial contribution. In cases of revenue forgone, where a tax measure constitutes 
a financial contribution in the form of foregone revenue, it may be readily concluded that a benefit 
is conferred. India has also provided th e relevant tax levels for comparison. In cases where the 
financial contribution is in form of grants by a government or a public body, a benefit is deemed to 
be ipso facto  conferred.  That said, India has in each case demonstrated the existence of benefit in 
the relevant market. In cases of provision of goods, Article 14(d) of the SCM Agreement provides 
the methodology to determine relevant the benchmark. India has explained that the renewable 
energy credits (i.e. goods) have been granted at no cost to the recipient, while these credits are 
traded at market determined prices that are far higher than the 'nil' cost at which they were obtained. 
Therefore, India has demonstrated that a benefit is conferred under each of the measures at issue.    
 
76. With respe ct to the "indirect beneficiaries" (i.e. the local manufacturers/producers of 
renewable energy equipment/system who use the incentivised products/components of domestic 
origin), benefit may be conferred in two ways: (i) pass -through of benefit from the "di rect 
beneficiaries"; and (ii) increased/additional sales of their product. "Additional sales" is an attribute 
of benefit. While it may be difficult and complex to quantify this attribute – "additional sales", the 
quantification of this attribute is not nec essary. A benefit may have two attributes: (i) one that is 
quantifiable – this is relevant in cases of countervailing measures where the subsidy margin is 
calculated based on the quantification of the benefit; and (ii) trade effects such as "additional sal es" 
which need not be quantified. In any event, in cases of prohibited subsidies, quantification of benefit 
is not required.  
 
77. Finally, the measure at issue which constitute subsidies are contingent upon the use of 
domestic over imported goods. India submits that Article 3.1(b) must be interpreted in a manner 
which does not restrict the scope of the SCM Agreement.  
 
(b)  The United  States has acted inconsistently failed to notify the subsidies to 
the SCM Committee.  
 
78. Given that the measures at issue are specific subsidies, the United States has acted in 
contravention of Article 25 of the SCM Agreement by failing to notify the sam e to the SCM 
Committee.  
 
4. The measures at issue, individually and/or collectively, nullify or impair the benefits 
accruing to it under Article XXIII:1(a) of the GATT.  
 
79. For the reasons stated above, India contends that the measures at issue, individu ally and/or 
collectively, nullify or impair the benefits accruing to it under Article XXIII:1(a) of the GATT 1994.  
 
 
 WT/DS510/R/Add.1  
 
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  ANNEX B -2 
SECOND INTEGRATED EX ECUTIVE SUMMARY OF T HE ARGUMENTS OF INDI A 
EXECUTIVE SUMMARY OF INDIA’S SECOND WRITTEN SUBMISSION  
 
I. Introduction  
1. Except for making unsubstantiated claims that India has failed to present a prima facie  case, 
the United States has not produced any evidence to rebut India's claims. Therefore, should the Panel 
find that India has ma de a prima facie  case – which India has – as matter of law the Panel should 
rule in favor of India's claims in this dispute.    
II. India has discharged its burden to establish a prima facie  case with respect to all 
the claims for each measure at issue  
2. India strongly rejects the recurring and unjustified theme of the United States’ claim that India 
has failed to establish a prima facie  case. India sets out below the key principles that must guide 
the Panel in assessing the United States' claim and India' s response on the issue of prima facie  case:  
• The burden of proof rests upon the party, whether complaining or defending, who asserts the 
affirmative of a particular claim or defence.  
• Precisely how much  and what kind of evidence will be required to establish a prima facie  case 
varies from measure t o measure, provision to provision, and case to case;  
• A complainant does not need to put forward all evidence and arguments relevant to the question 
of the measure's consistency with the covered agreements;  
• A prima facie  case is one which, in the absenc e of effective refutation by the defending party, 
requires a panel, as a matter of law, to rule in favour of the complaining party presenting the 
prima facie  case;  
• Whether or not the facts already on the record deserve the qualification of a prima facie  case, 
drawing of inferences is an inherent and unavoidable aspect of a panel's basic task of finding 
and characterizing the facts making up a dispute.  
3. The key principles set out above when applied to the present dispute would show India has 
established  a prima facie  case for each claim.  
III. The United States has not disputed India's claims under Article III:4 of the GATT 
1994  
4. In its First Written Submission, United States contends if a measure does not affect the "use", 
"purchase", "sale" of a produ ct, then it cannot "modify the conditions of competition". India has 
already responded to this argument and submitted that a demonstration of actual  trade effects or 
implications in the marketplace is not required  for proving inconsistency with Article III :4 of the 
GATT 1994. Therefore, any measure which has the potential to adversely modify the conditions of 
competition (between the imported and domestic product) to the detriment of the imported product 
is prohibited under Article III:4 of the GATT 1994.  
5. In response to the United States’ argument that India has used "incentivization" as a vector 
and therefore it must show how the incentivization has affected the use of the products in question, 
India notes that this argument is tantamount to that of actual trade effects . However, the United 
States, in response to a question from the Panel clarified that it agrees that demonstration of actual 
trade effects is not essential for a claim under Article III:4 of the GATT 1994. With that clarification, 
India con siders that there is no disagreement between the parties with respect to India's claims 
under Article III:4 of the GATT 1994 and the Panel may rule on India's claims in its favour.  WT/DS510/R/Add.1  
 
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  IV. The United States' argument that the TRIMs Agreement covers only measur es that 
impose requirements or conditions on an enterprise is without any merit  
6. India has made two separate claims for each of the measures at issue under the TRIMs  
Agreement. First, India has argued that each of the measures at issue is inconsistent with Article 
2.1 of the TRIMs Agreement; and second, although not needed to resolve this dispute, India has 
demonstrated that the measures at issue also fall within the scope of Article 2.2 read with paragraph 
1(a) of the Illustrative List.  
7. The United States has not offered any comments on India's claims under the TRIMs Agreement 
with respect to: (i) Montana Tax Incentive for Ethanol Production; (ii) Montana Tax Credit  for 
Biodiesel Blending and Storage; (iii) Montana Tax Refund for Biodiesel; (iv) Michigan Renewable 
Energy Standards Program and (v) Delaware Renewable Energy Standards Program. Therefore, if 
the Panel finds the measures at issue under the aforementioned programs to be inconsistent with 
Article III:4 of the GATT 1994 (which they are), there is no disagreement between the parties on 
claims with respect to these measures under the TRIMs Agreement.  
(a) Nothing in the TRIMs Agreement suggests that it covers on ly those measures that 
impose requirements or conditions on an "enterprise".  
8. India fundamentally disagrees with the United States that the TRIMs Agreement concerns 
itself only with measures that impose requirements or conditions on purchase, use, import ation, or 
exportation of goods by an "enterprise". Neither the text, context and the object of the TRIMs 
Agreement nor the WTO jurisprudence supports this interpretation introduced by the United States. 
India’s position is corroborated by the following rea sons:  
9. First, the TRIMs Agreement does not define a trade -related investment measure or otherwise 
specify the scope  of that term.  
10. Second , TRIMs Agreement must not be narrowly interpreted so as to impose restrictions which 
the Members have not expres sly provided in the text of the Agreement. For instance, the text of 
Article 1 of the TRIMs Agreement, which deals with the coverage  of the Agreement, does not, in any 
manner, restrict the scope of a TRIM. To the contrary, Article 1 is widely worded with n o reference 
to the term "enterprise". Similarly, Article 2.1 prohibits Members from applying any TRIM that is 
inconsistent with the provisions of Article III or Article XI of the GATT 1994. Therefore, Members 
had expressly  put limitations where they intend ed. This reasoning is supported by the objects of the 
Agreement which aim to discourage Members from applying TRIMs that can cause "trade -restrictive 
and distortive effects". Till date, no panel or the Appellate Body report has limited the scope of 
"invest ment measure" in a manner that the United States proposes. Indeed, limiting TRIMs to 
"enterprises" alone undermines the purpose of the TRIMs Agreement.  
11. Third, the reference to the phrase "enterprise which are subject to a TRIM" in Article 5.5 of 
the Ag reement, as relied upon by the United States, does not suggest that a measure must impose 
requirements or conditions on an "enterprise". Assuming, arguendo , a TRIM must necessarily relate 
to an enterprise, such enterprise may be subject to a TRIM in a vari ety of ways as contemplated by 
the panel in Indonesia – Autos .  
12. Fourth , the United States' argument that each of the illustrations under the Illustrative List 
refers to an enterprise is irrelevant. An illustrative list, by its very definition, is non -exhaustive. In 
other words, there can be other possible TRIMs that are inconsistent with Article III:4 and Article 
XI:1 of the GATT 1994 but which do not impose any requirement on an enterprise.  
13. Finally , the reference to the term "enterprise" in the Illustrative List and by extension in Article 
2.2 of the TRIMs Agreement cannot control the scope of Article 1 or Article 2.1 of the Agreement. 
Based on the evidence submitted by India, it is evident that the  measures are TRIMs.  
(b) The measures at issue squarely fall within the scope of Article 2.2 read with 
paragraph 1(a) of the Illustrative List of the TRIMs Agreement.  
14. At the outset, India submits that its claims under Article 2.2 are not determinative  for resolving 
this dispute. Should the Panel agree with India's claims under Article 2.1, the question whether the 
measures fall within the scope of Article 2.2 would have little relevance.  
15. India submits that each of the measures at issue, as conteste d by the United States, fall within 
the scope of Article 2.2 read with paragraph 1(a) of the Illustrative List for the following reasons:  WT/DS510/R/Add.1  
 
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  (i) There is no requirement that the recipient of the advantage must necessarily be the 
enterprise using or purchasing  the product of domestic origin.  
 
16. Paragraph 1(a) provides certain examples of TRIMs that are inconsistent with Article III:4 of 
the GATT 1994. It includes  those measures that fulfil the two separate elements set out below:  
• TRIMs that are mandatory or enforceable under domestic law or under administrative rulings, 
or compliance with which is necessary to obtain an advantage; AND 
• TRIMs  that require the purchase or use by an enterprise of products of domestic origin.  
17. A plain reading of the text of the paragraph 1(a) of the Illustrative List does not support the 
argument that it would be triggered only if (a) an enterprise that uses or purchases domestic 
products is the one that obtains an advantage; or (b) the recipien t of the advantage must be an 
enterprise . Moreover, the advantage could be provided to a wide variety of economic actors and not 
necessarily  to an enterprise or to the very same enterprise using the products of domestic origin, as 
the United States seems t o claim. Therefore, each of the measures at issue satisfy these two 
separate elements of paragraph 1(a) of the Illustrative List.  
(ii) Assuming arguendo, the recipient of the advantage is necessarily the enterprise using or 
purchasing the product of domes tic origin, each of the measures at issue satisfies this 
element.  
 
18. The United States relies on the Oxford Dictionary to argue that the term "enterprise" is 
restricted to legal entities such as a "business firm" or a "company". However, the dictionary 
meaning of a term cannot replace the context, object and purpose of an agreement. The object and 
purpose of the TRIMs Agreement is crystallized in its preamble, Article 1 and Article 2. The primary 
object of the TRIMs Agreement is to discipline investment measures that may cause trade -restrictive 
and distortive effects. In this context, the term "enterprise" cannot be restricted to a narrow and 
rigid construct that the United States proposes.     
19. Further, the term "enterprise" must be viewed akin to eng agement in an economic activity. 
Indeed, the Appellate Body, in US – Washing Machines  took the view that an individual or a natural 
person may be an "economic actor" for purposes of the SCM Agreement. India considers that the 
Appellate Body's views are ins tructive in interpreting the meaning of the term "enterprise" under the 
TRIMs Agreement. For the purposes of TRIMs Agreement, an "enterprise" would include natural 
persons who engage in any economic activity such as purchasing a renewable energy equipment 
from a firm to receive incentives offered by a government.  
20. Based on the interpretation above, each of the measures at issue squarely fall within the scope 
of paragraph 1(a) of the Illustrative List of the TRIMs Agreement. To illustrate, under the RECI P, if 
an individual uses or purchases a renewable energy equipment containing specified components 
manufactured in Washington, such individual receives an incentive (i.e. advantage). The individual, 
here, is an enterprise for the purposes of paragraph 1(a)  of the Illustrative List. This analysis, mutatis 
mutandis , applies to all the measures whose coverage under the TRIMs Agreement has been 
contested by the United States. India has provided a non -exhaustive list of persons/entities who 
may be considered as enterprises for the purposes of paragraph 1(a) of the Illustrative List.  
(iii) Alternatively, even a restrictive meaning of a 'TRIM' and an "enterprise", as proposed by 
the United States, will result in the measures at issue being covered under Article 2.2  
read with paragraph 1(a) of the Illustrative List of the TRIMs Agreement.  
 
21. Alternatively , assuming the United States' excessively restrictive interpretation of the terms 
"TRIM" and "enterprise" as well as its misreading of paragraph 1(a) were to hold,  all the measures 
at issue are TRIMs which, directly or indirectly , subject an enterprise to certain requirements or 
conditions. The Appellate Body in Canada – FIT noted that the term 'advantage' in the context of 
the TRIMs Agreement is broader than the term 'benefit' under the SCM Agreement.  
22. By way of an example, the measures at issue under RECIP require that if a person (whether 
individual, business, local government entity with few exceptions) generates electricity through a 
renewable energy equip ment consisting of certain specified inputs  (such as blade, inverter or solar 
sterling) manufactured in Washington, then such a person shall be entitled to an incentive. The 
measure, therefore, in effect, indirectly  induces enterprises engaged in manufactu ring of renewable 
energy equipment to use specified inputs manufactured in Washington to obtain an advantage. The 
advantage to these enterprises may be in the form of additional price, increased demand or 
protection from fair competition from 'like' import ed products.  WT/DS510/R/Add.1  
 
- 25 - 
 
  23. A similar analogy applies to all other measures at issue that the United States has contested 
to not fall within the scope of the TRIMs Agreement. In other words, merely because a measure has 
been structured in a manner that it does not, prima facie , seem to directly  impose requirements on 
an enterprise, it cannot escape the scrutiny of the TRIMs Agreement. Therefore, the measures at 
issue may be viewed as directly  imposing requirements/conditions on enterprises engaged in the 
manufacturing of end -products to use inputs of domestic origin in order to obtain an advantage. The 
measures at issue may also be viewed as indirectly  imposing requirement on the enterprises 
engaged in manufacturing of end -products through direct imposition of requirements/conditions on 
consumers of end -product.  
24. In light of the above, India reiterates that all the measures at issue are TRIMs that: (i) are 
inconsistent with Article 2.1 of t he TRIMs Agreement because they are inconsistent with Article III 
of the GATT 1994; and (ii) also fall squarely within the scope of Article 2.2 read with the Illustrative 
List of the TRIMs Agreement.  
V. The United States has failed to rebut India's claims on financial contribution and 
benefit under the SCM Agreement.  
25. The United States argument on India’s failure to demonstrate that any of the measures at 
issue meet the definition of subsidy within the meaning of Article 1 of the SCM Agreement is without  
any merit for the following reasons.  
(a) There is no requirement to demonstrate actual financial contribution under Article 
1.1(a) of the SCM Agreement.  
26. The United States has made a generic argument that India has failed to make a prima facie  
case of  financial contribution because it failed to provide evidence of actual  contribution. India has 
argued that evidence of actual contribution is not necessary to prove existence of financial 
contribution. The arguments of the United States do not find suppor t in the WTO jurisprudence and 
text of the SCM Agreement. The panel in US – Tax Incentives , while interpreting the phrase 
"government revenue that is otherwise due is foregone " held that a commitment by a government 
or public to make a direct transfer of f unds or to forego revenue would constitute a financial 
contribution, and not only particular instances of it being done. In addition to the clear WTO 
jurisprudence on this issue, India has systemic concerns on the view proposed by the United States.  
27. If the United States' views were to be a correct reading of Article 1.1 of the SCM Agreement, 
it would mean that a Member State can challenge a measure adopted by another Member only if 
that measure is actually applied. Moreover, if the information with res pect to actual financial 
contribution (or application of measure in a broad sense) is not available in public domain, a 
complaining Member can never resort to the dispute settlement process. This would not only erode 
the effectiveness of the dispute settle ment process but also defeat the rule -based system of the 
WTO.  
(b) India has adequately demonstrated that each of the measures at issue confer 
benefit within the meaning of Article 1.1(b) of the SCM Agreement.  
28. The United States has argued that India ha s failed to establish the measures at issue confer 
any 'benefit'. To recall, India's claims with respect to financial contribution fall under the category of 
direct transfer of funds in the form of grants , revenue foregone and/or provision of goods. In cas e 
of prohibited subsidies, the Panel only needs to determine that a benefit exists  as opposed to its 
precise quantification. However, the Panel does not need to determine a benchmark to find existence 
of benefit in every case.  
29. On the issue of benefit in cases of revenue forgone, previous panels have noted that where 
the financial contribution is in the form of the foregoing of revenue otherwise due, the conclusion 
that a benefit exists has been made with little difficulty. Therefore, in cases where the  Panel 
concludes that any of the measures at issue involve financial contribution in the form of revenue 
foregone, it need not examine that a benefit exists. This is not disputed by the United States.  
30. India will now address the question of benefit with respect to financial contribution in the form 
of grants . Article 14 of the SCM Agreement provides guidelines for determining benefit with respect 
to financial contributions in the form of equity investmen ts, loans, loan guarantees  etc. However, it 
does not provide any guidelines with respect to financial contributions in the form of grants . The 
reason for this conscious omission is obvious. There cannot be such a benchmark and one does not 
need a benchmark  for a comparison when a government makes a grant  as opposed to loan or equity WT/DS510/R/Add.1  
 
- 26 - 
 
  infusion etc. The inference, therefore, is that in cases of grants  by a government or a public body, a 
benefit is ipso facto  conferred.   
31. The Panel may have noted that all o f India's claims with respect to direct transfer of funds 
pertain to grants and not loans or equity infusion. Therefore, once the Panel determines that a 
financial contribution is in the form of grants, the existence of benefit is automatically deduced.  
Accordingly, the United States' assertion that India has failed to show existence of benefit is without 
any merit. In any event, India has made detailed submissions with respect to "benefit" in the relevant 
market for each of the measures at issue.  
32. On th e question of recipient of the benefit, the Appellate Body has noted that a subsidy may 
be conferred to a wide variety of economic actors , including individuals, groups of persons, or 
companies. India has demonstrated that for each of the measures at issue , there may be two 
categories of beneficiaries namely, (i) direct recipients of the financial contribution; and (ii) the local 
producers of the 'like' products of domestic origin.  
(i) India has demonstrated that measures at issue confer benefit on direct recipients of 
financial contribution  
 
33. With regard to  the category of direct recipients of the financial contribution, India reiterates 
that it has made a prima facie  case that these recipients have received benefits as they are "better 
off" in the relevant market. The United States' thematic argument is tha t the seller of the specific 
product may have increased the prices to the extent of financial contribution and therefore, the 
direct recipients are left with no benefit. However, India reiterates that effective cost to the 
purchaser would not change due to  such increase as the purchaser receives the differential from the 
government or public body. Therefore, the purchaser is "better off" in the market than what it would 
have been absent such financial contribution.  
(ii) India has demonstrated that measures  at issue confer benefit on "indirect beneficiaries" 
in each case.  
 
34. At the outset, India submits that the issue of benefit to the "indirect beneficiaries" is not 
determinative for assessing existence of subsidy in this dispute. A subsidy exists if the existence of 
financial contribution and benefit is proven. It does not matter which all economic actors may be the 
recipients of the benefit. In any event, India has responded to the arguments made by the United 
States below:  
(a) United States argument tha t India's approach does not leave any room for any benefit to 
the indirect beneficiaries is incorrect. India does not claim that direct recipients of financial 
contribution receive the same benefits as "indirect beneficiaries".  
(b) For the purposes of bene fit analysis with respect to "indirect beneficiaries", only one market 
for renewable energy equipment/system that contains the incentivized products/components of 
domestic origin is relevant.  
VI. Each of the measures at issue constitute subsidies that are "contingent, . . . upon 
the use of domestic over imported goods.  
35. India recalls that the United States did not contest or provide any reasons in its First Written 
Submission on why the subsidies are not "contingent, . . . upon the use of domestic over i mported 
goods". However, given the nature of questions from the Panel, India understands the issue to be 
identification of the economic actor in a trade chain (from upstream producer to the ultimate 
consumer) who has to "use" the domestic goods over import ed goods to satisfy the elements of 
Article 3.1(b) of the SCM Agreement. India submits that this issue is not determinative for resolving 
the present dispute. This is because the concept of subsidy and the phrase "contingent, . . . upon 
the use of domestic  over imported goods" are agnostic to economic actors.  
36. Article 1 of the SCM Agreement, which defines a subsidy, does not provide for who could be 
the recipient of a financial contribution or benefit. Similarly, Article 3.1(b) does not state who has to  
be the "user" of domestic goods. Any restrictive meaning of the term "use" or a restrictive construct 
of Article 3.1(b) would result in an overly narrow interpretation. Therefore, given that the definition 
of subsidy and the phrase "upon the use of domest ic over imported goods" is agnostic to economic 
actors, it is not necessary for the Panel to identify economic actors.  
37. Assuming the term "use" is given a restrictive meaning such that only a manufacturer or 
producer may "use" domestic goods over impor ted within the meaning of Article 3.1(b), the WT/DS510/R/Add.1  
 
- 27 - 
 
  measures at issue will still fall within its scope. Article 3.1(b) has three separate elements: (i) the 
existence of subsidy; (ii) contingency; and (iii) "use of domestic over imported goods". Whether the 
Panel  considers that a non -manufacturer can "use" the domestic goods or only a manufacturer can 
"use" the domestic goods, the conclusions with respect to India's claims will not change. In the case 
of former, each measure at issue would fall within the scope of  Article 3.1(b) as they constitute 
subsidy to certain persons (economic actors whether they are called retail consumers or end -users 
or intermediate purchasers) contingent upon use (purchase or consumption) by such person of 
certain renewable energy equipm ent containing domestic goods. In the case of latter, each measure 
at issue would constitute subsidy to a person (it could be the end -user or intermediate purchaser, 
or it could be the manufacturer who receives a benefit by pass -through) contingent upon th e 
manufacturer using specified domestic components in manufacturing the final renewable energy 
equipment or product.  
EXECUTIVE SUMMARY OF INDIA’S OPENING ORAL STATEMENT AT THE SECOND 
SUBSTANTIVE MEETING OF THE PANEL  
I. The United States has failed to rebu t India's claims under Article III:4 of the GATT 
1994.  
38. The United States, in its Second Written Submission, repeats its previous arguments on 
"incentivization" and argues that India must show how each of the measures operate in the relevant 
market. In dia has already described the design, structure and expected operation of each of the 
challenged measures at issue to show the "affect" requirement. The very design and structure of the 
measures at issue reveal their discriminatory nature which is in blata nt violation of the mandate 
under Article III:4 of the GATT 1994. The discriminatory element of these measures also 
demonstrate the expected operation of these measures i.e., they might  adversely modify the 
conditions of competition between the imported pr oducts and "like" domestic products to the 
detriment of the former. Whether the measures actually  modify the conditions of competition and 
manner in which they operate and the extent to which such modifications occurs – all of these are 
not required to be demonstrated to make a claim under Article III:4 of the GATT 1994.  
39. The United States' arguments are particularly problematic given it asserts that the existence 
of "actual trade effects" is not an essential element of a claim under Article III:4 of the  GATT 1994. 
Yet, it argues that India must show how "incentivization" operates in the relevant market. The United 
States' attempt to create an imaginary standard for demonstration of "actual trade effects" for a 
claim under Article III:4 is obvious. Not on ly are these arguments contrary to established WTO 
jurisprudence but they are also contradictory to the United States' own position.  
II. The TRIMs Agreement applies to the measures at issue.  
40. India has argued that each of the measures at issue is inconsistent with Article 2.1 of the 
TRIMs Agreement and fall within the scope of Article 2.2 read with paragraph 1(a) of the Illustrative 
List. India submits that the United States' arguments with res pect to India's claims under the TRIMs 
confuse between Article 2.1 and Article 2.2 of the TRIMs Agreement.  
(a) The text, object and purpose of the TRIMs Agreement do not show that the Agreement 
covers only those measures that impose requirements or conditi ons on enterprises.  
 
41. The core of the United States' arguments is that the TRIMs Agreement concerns only with 
those measures that impose requirements or conditions on an enterprise. The United States broadly 
raises two arguments to show that the "object  and purpose" of the TRIMs Agreement does not 
support the view that the Agreement's scope extends beyond measures that "impose purchase or 
use requirements" on an enterprise. The United States further argues that the phrase "to facilitate 
investment across  international frontiers" in the preamble of the TRIMs Agreement suggests that 
the Agreement only deals with enterprises since "investments are typically in the form of an 
investment in an enterprise".  
42. If the United States' arguments were to be accept ed and assuming if the only purpose of the 
TRIMs Agreement is "to facilitate investment across international frontiers so as to increase the 
economic growth of all trading partners", then the question is whether the challenged measures at 
issue are compati ble or antithetical to this objective. If a measure rewards use of products 
manufactured within the domestic territory of a country and does not offer the same rewards to 
competing "like" imported products, it is natural that some entities would move their  investments 
and manufacturing into the territory of the importing country. This will result into a concentration of WT/DS510/R/Add.1  
 
- 28 - 
 
  investment into the importing country as opposed to the diversification of investments across 
international frontiers, against the economic  interests of other trading partners. This is directly 
antithetical to the object and purpose of the TRIMs Agreement as relied by the United States. India 
has demonstrated that the challenged measures are not only designed to boost local manufacturing 
and investments but, for example in case of RECIP, also expressly state their intent to foster local 
manufacturing and industries. Needless to say, the stated objectives such measures prevent 
investment across international frontiers as opposed to facilitating  it.  
(b) Response to the United States' arguments on direct or indirect imposition of 
requirements or conditions and meaning of the term "enterprise".  
43. The United States makes two broad claims with respect to imposition of requirements or 
conditions on  enterprises. (i) India has not demonstrated that a manufacturer would need to source 
inputs from local suppliers to obtain an advantage; (ii) even if there is an implicit requirement to 
manufacture locally, this does not mean that manufacturer would need to purchase or use locally 
produced inputs as it can source inputs from any jurisdiction.  
44. The text of paragraph 1(a) of the Illustrative List contains the phrase "the purchase or use by 
an enterprise of products  of domestic origin." Therefore, it is a ny product  and not any input which 
is of concern. Contrary to the United States’ argument, India has demonstrated the imposition of 
requirements to use or purchase the products of domestic origin to obtain an advantage. On the 
question of whether such impo sition is on an enterprise, India submits that irrespective of how the 
term "enterprise" is interpreted, it has previously demonstrated that the measures at issue directly 
or indirectly impose requirements on an enterprise to use or purchase products of do mestic origin 
to obtain an advantage.  
45. The United States' second argument that a manufacturer is free to source inputs from any 
jurisdiction so long as the manufacturing process takes place within the relevant State of the United 
States is misplaced at  two levels. First, the United States assumes that the economic entity availing 
the advantage has to be a manufacturer. This is not the case as India has explained previously. The 
enterprise need not necessarily be a manufacturing firm and it need not nece ssarily obtain the 
advantage. Second , while a manufacturer may use or purchase inputs  from any source to 
manufacture an intermediate product , the use or purchase of "like" imported intermediate product  
does not attract the same advantage.  
III. The measures  at issue are inconsistent with Article 3.1(b) read with Article 3.2 of 
the SCM Agreement.  
46. The United States has broadly repeated its previous arguments on existence of financial 
contribution, benefit, contingency and use. India has briefly addressed t hese arguments below.  
(a) The United States' arguments on existence of financial contribution are without 
any merit.  
47. The core of the United States' argument is that a complaining party must provide evidence of 
actual financial contribution or actual tr ansaction showing a financial contribution to make a prima 
facie case for the existence of financial contribution under Article 1.1 of the SCM Agreement. In 
particular, the United States relies on the word "is" under Article 1.1(a)(1), which in part, reads  that 
"a subsidy shall be deemed to exist if [inter alia] there is a financial contribution by a government 
or any public body". It is the United States' position that the use of the operative term "is" indicates 
that a subsidy can be said to exist only wh ere the government has actually made a financial 
contribution under the measure at issue.  
48. India through its previous submissions has demonstrated the fallacy of this argument. 
Interestingly, the United States had made very same arguments in a prior dis pute. The panel in that 
dispute rejected these arguments and noted that "[T]he foregoing of revenue is constituted by the 
government's promise to do so, and not only by particular instances of it being done". Therefore, a 
commitment or promise by a governm ent or public body to make a direct transfer of funds or to 
forego revenue would constitute a financial contribution. This does not require showing of actual 
transactions.  
49. India reiterates its previous submissions on this issue and concludes that Indi a has made a 
prima facie  case with respect to existence of financial contribution. Given the United States has 
made no efforts to substantively refute India's claims on financial contribution, the Panel, as matter 
of law, should rule in India's favour.  WT/DS510/R/Add.1  
 
- 29 - 
 
  (b) The United States' arguments on existence of benefit are without any merit.  
50. Similar to the issue of existence of financial contribution, the United States argues that India 
has failed to establish a prima facie  case with respect to existence of benefit. Interestingly, the 
United States submits that "India did not even present a single theory of benefit ". A paragraph later, 
the United States argues that "India appears to advance inconsistent theories " and that In dia 
[presents] yet another possible theory  of benefit. The contradictions in the United States' statements 
need not be called out.  
51. The records available before this Panel speak for themselves. India has made detailed 
submissions and analysis with respe ct to existence of benefit in its very First Written Submission. 
The United States' argument that India has advanced multiple theories of benefit and therefore, 
proven that it did not meet its burden in its First Written Submission seems to be based on a 
misunderstanding of concept of a prima facie  case and the due process. However, assuming, India 
has introduced any new arguments, it has the right to do so throughout the course of the present 
proceedings. This is without prejudice to India's submissions in  First Written Submission where it 
had indeed made more than a prima facie  case on the existence of benefit.   
52. Due process implies that India has the right to rebut arguments made by the United States or 
respond to the questions from the Panel. India's  arguments in its subsequent submissions were in 
response to the United States' claims. For the foregoing reasons, the United States' arguments that 
India has failed to show existence of benefit are without any merit.  
(c) The United States' arguments on " contingency" and "use" are without any merit.  
53. The United States has not advanced any new arguments on the issue of "contingency" and 
"use" under Article 3.1(b) of the SCM Agreement. India, therefore, reiterates its previous 
submissions on this issue. To summarise, India has adequately addressed the is sue of contingency 
in its First Written Submission for each measure. Further, the interpretation of the term "use" under 
Article 3.1(b) is not determinative for India's claims. Whether it is given a restrictive interpretation 
or a wider interpretation, Ind ia has demonstrated that each of the measures at issue satisfy the 
"use" element.  
EXECUTIVE SUMMARY OF INDIA’S RESPONSES TO THE PANEL’S QUESTIONS FOLLOWING 
THE SECOND SUBSTANTIVE MEETING   
54. India submits that the amendments to / replacement measures to the original Measures 1, 2 
and 8 properly fall within the terms of reference of the Panel. These amendments/ replacements do 
not change the essence of the original measures and ruling on them is necessary to resolve the 
dispute. This has not been disputed by the United States either in its request for Preliminary Ruling 
or in subsequent submissions.  
55. Accordingly, India requests the Panel to issue findings and recommendations on Measure 1 
(RECIP) as amended  (which would include amendments to the original  measure and also the 
additions in form of RCW 82.16.165 read with relevant rules framed thereunder). Measure 2 (SGIP) 
is administered by the Program Administrators through handbooks which are issued from time to 
time. The 2016 SGIP Handbook and the 2017 S GIP Handbook are examples of such periodic 
handbooks through which the Program Administrators implement the legislative mandates. 
Therefore, the relevant parent legislations together with the handbooks constitute a 'series of 
measures' or successors in ser ies. Accordingly, India requests the Panel should issue findings and 
recommendations on the 'series of measures' taken together.  
56. With respect to Measure 8 (Michigan Renewable Energy Standards Program), India requests 
that the Panel should issue finding s and recommendations with respect to the measure as amended . 
With respect to Measure 10 (Minnesota Solar Incentive Program), India requests that Panel to issue 
both findings and recommendations because the challenged measures continue to be in operation 
and have an ongoing effect.   WT/DS510/R/Add.1  
 
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  ANNEX B -3 
FIRST INTEGRATED EXE CUTIVE SUMMARY OF TH E ARGUMENTS OF THE U NITED STATES  
EXECUTIVE SUMMARY OF U.S. FIRST WRITTEN SUBMISSION  
 
I. Introduction  
In this dispute, India addresses a number of state and  local measures in which India has no 
trade interest . India provides minimal evidence on the extent to which these measures have been 
applied or are currently being applied, and  provides no evidence that the measures have ever 
affected a single export of an Indian renewable energy good .  
II. Factual Background & Measures at Issue  
First, India appears to have no significant trading interest in the measures at issue in this 
dispute. Second , most of the measures at issue are no longer in legal effect or are due to expire 
within the next two years, as India is aware . Third, records confirm that nearly half of the measures 
at issue have fallen into general disuse and are essentially  moribund . Fourth , at any rate, India has 
failed to establish that any of the measures at issue breach United States ' obligations under a 
covered agreement .  
WASHINGTON – Renewable Energy Cost Recovery Incentive Program 
("RECIP ") 
 
Under RECIP , Washington State utility "customers " that own grid -connected "renewable 
energy systems " are eligible to receive annual "incentive payments " from their servicing utility 
company based on the amount of electricity ( i.e., kilowatt -hours) produced by the cus tomer 's 
renewable energy system over the previous fiscal year .  
CALIFORNIA – Self-Generation Incentive Program ( "SGIP ") 
 
SGIP provides certain incentive payments to California utility "customers " that install 
qualifying renewable energy generation or storage systems on their property . California 's four major 
investor -owned utility companies provide the funding for SGIP incentives, with specific funding 
amounts determined and directed by the Califo rnia Public Utilities Commission ( "CPUC ").  
LOS ANGELES – Solar Incentive Program ( "SIP") 
 
Under SIP, the Los Angeles Department of Water and Power ( "LADWP ") provides "one-time" 
upfront "incentive payments " to residential, commercial, and non -profit customers that install grid -
connected solar rooftop systems on their property .  
MONTANA – Tax Incentive for Ethanol Production ( "MTEIP ") 
 
MTIEP is a tax incentive payable to ethanol producers located in the State of Montana . 
Qualifying ethanol producers are eligible for a tax incentive of up to USD $0.20 per gallon of ethanol 
produced for the first six years of their production .  
MONTANA – Tax Credit for Biodiesel Blending and Storage ( "Biodiesel Tax 
Credit ") 
The Biodiesel Tax Credit is a tax credit available to  individuals and business that "store or 
blend biodiesel with petroleum for sale. "  To qualify for the Biodiesel Tax Credit, an individual or 
business must own or lease a biodiesel blending facility, or have a "beneficial interest " therein .  
MONTANA – Tax Refund for Biodiesel ( "Biodiesel Refund ") 
 
The Montana Biodiesel Refund is a $0.01 - $0.02 per gallon tax refund available to certain 
gasoline "distributors " and "retail motor vehicle outlets " in Montana .  WT/DS510/R/Add.1  
 
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CONNECTICUT  – Residential Solar Investment Program ( "RSIP ") 
 
RSIP provides incentives to Connecticut homeowners that install solar power systems on their 
residential property .   
MICHIGAN – Renewable Energy Standards Program ( "Michigan RESP ") 
 
The Michigan Legislature established the RESP as part of Michigan 's Clean, Renewable, and 
Efficient Energy Act of 2008 ( "PA 295 "). Under the RESP, "electricity providers " in Michigan are 
required to source a growing percentage of their electricity retail sales from renewable energy 
sources each year, with a target of at least  15% renewables by 2021 .   
DELAWARE – Renewable Energy Standards Program ( "Delaware RESP ") 
 
Under Delaware 's RESP, "retail electricity suppliers " are required to source a growing 
percentage of their retail electric sales from renewable energy sources (e.g., solar, wind, hydro -
power) . Electricity suppliers demonstrate yearly compliance by purchasing "renewable energy 
credits " (RECs) from renewable e nergy power generators ( "generation units ").  
MINNESOTA – Minnesota Solar Incentive Program ("MSIP")  
 
India's first written submission refers to a program called the MSIP . The United States 
understands India to use that nomenclature as an umbrella term for three "distinct " programs.  
Made in Minnesota Solar Energy Production Incentives ( "Solar PV Incentive ") 
The Solar PV Incentive was a "performance -based " incentive av ailable to residential and 
commercial property  owners in Minnesota that installed "grid connected solar photovoltaic modules " 
on their property .  
Rebates for Installation of Solar Thermal Systems ( "Solar Thermal Rebates ") 
The Solar Thermal Rebates was an incentive program that provided "rebates " to Minnesota 
residential and commercial property owners that installed on their property a "solar thermal system " 
with components "made in Minnesota. "   
Rebate for Solar PV Modul es ("Solar PV Rebate ") 
15. The Solar PV Rebate was an incentive program that provided rebates to Minnesota property 
owners that installed "solar photovoltaic modules" on their property.   
MASSACHUSETTS – Commonwealth Solar Hot Water Program ( "SHWP ") 
 
Under the SHWP, the Massachusetts Clean Energy Technology Center ( "MassCEC ") provides 
"rebates " to offset the cost of installing "solar hot water systems (SHWs) at residential, commercial, 
industrial, institutional, and public facilities. "   
III. Requests for Preliminary Rulings  
The LAMC Adder (formally provided for under the Los Angeles SIP) and the Massachusetts 
Manufacturer Adder (formally provided for under the SHWP) were no longer in legal force when the 
Panel was established on March 21, 2017.  
In addition, the (i) Solar Thermal Rebates; and (ii) Solar PV Rebates under the MSIP were not 
included in India 's request for consultations, and were not the subject of consultations between India 
and the United States.  WT/DS510/R/Add.1  
 
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  A. The "LAMC Adder " and "Massachusetts Manufacturing Adder " fall outside 
of the Panel 's terms of reference  
 
The LAMC Adder and the Massachusetts Manufacturing Adder fall outside the Panel 's terms of 
reference because both measures were no longer in legal force – and therefore were "not in 
existence " – when the Panel was established on March 21, 2017 .   
The LAMC Adder falls outside the Panel 's terms of reference because 
it was no longer in legal effect as of January 1, 2017 and therefore 
was not "in existence " when the Panel was established on March 21, 
2017  
The Los Angeles Board of Water and Power Commissioners ( "the Board ") approved the 2017 
SIP Guidelines  on December 6, 2017 and specified that they "shall become effective January 1, 
2017. "   
In addition to approving the 2017 SIP Guidelines , the Board explicitly terminated the LMAC 
Adder in its resolution of December 6, 2016 . Specific ally, the Board adopted the following proposal 
to "remove " the LMAC Adder as a feature of the SIP . 
Similarly, the Los Angeles Manufacturing Credit will be  removed . There have been 
no requests for this manufacturing credit for over three  years. (Emphasis ad ded).  
India has failed to meet its burden to establish that the LAMC Adder was a measure "in 
existence " when the Panel in this dispute was established on March 21, 2017.  
India's assertion that "there is a risk that the LMAC  Adder or similar measures are re -
introduced " is wholly unsupported . Indeed, India does not even attempt to explain why it perceives 
such a risk or why the Panel should take this risk seriously .  
The Massachusetts Manufacturer Adder falls outside the Pa nel's 
terms of reference because it was no longer in legal effect as of 
January 1, 2017 and therefore was not "in existence " when the 
Panel was established on March 21, 2017  
The Massachusetts Manufacturer Adder ( "the Adder ") was not a measure "in exist ence" when 
the Panel was established on March 21, 2017 . The legal instruments that allegedly provide for the 
Adder were not in legal force as of October 5, 2016, and thus not in force on March 21, 2017, when 
the Panel was established .  
Accordingly, the  Massachusetts Manufacturing Adder was not in existence when the Panel was 
established, and there is no jurisdictional basis for the Panel to examine or make legal findings with 
respect to the LAMC Adder .  
B. The "Solar Thermal Rebate " and "Solar PV Rebate " were not the subject of 
consultations between India and the United States and therefore fall 
outside of the Panel 's terms of reference  
 
India seeks legal findings with respect to the (1) Solar Thermal Rebate ; and (2) Solar PV 
Rebate  as provided under  the program India characterizes as the "Minnesota Solar Incentive 
Program. "  India, however, did not identify either of these two measures in its request for 
consultations of September 9, 2016 . Therefore, both measures fall outside the Panel 's terms of 
reference, and the Panel should reject India 's request for legal findings with respect to these 
measures.  
The "Solar Thermal Rebates " does not fall within the Panel 's terms 
of reference because India did not identify that measure in its 
request for con sultations  
India's request for consultations identifies the MSIP as a measure "administered pursuant the 
criterion established under [ Minnesota Statute § 216C.414, subd. 2 (2013) ]."  The "criterion 
established under Minnesota Statute § 216C.414 subd. 2 " pertains to the Solar PV Incentive ( see, 
section II.J.1), under which Minnesota provides incentives to property owners that install "solar 
photovoltaic modules " not "solar thermal systems. "   
Therefore, the scope of India 's request for consultations was limited to the "Minnesota Solar 
Energy Production Incentive " – that is, the measures "administrated pursuant to the criterion 
established under Minnesota Statutes § 216C.414 subd. 2 ."   WT/DS510/R/Add.1  
 
- 33 - 
 
  
Because India limited the scope of its request for consultatio ns to measures "administered 
pursuant to the criterion established under Minnesota Statutes § 216C.414 subd. 2 ," the Solar 
Thermal Rebates necessarily falls outside the scope of India 's request and the Panel 's terms of 
reference.  
The "Solar PV Rebate " does not fall within the Panel 's terms of 
reference because India did not identify that measure in its request 
for consultations  
The scope of India 's request for consultations was limited to the Solar PV Incentive – that is, 
the measures "admin istrated pursuant to the criterion established under Minnesota Statutes § 
216C.414 subd. 2 ". Accordingly, measures administered pursuant to different "criterion " necessarily 
fall outside the scope of India 's request for consultations and the Panel 's terms of reference .   
Because India limited to scope of its request for consultations to measures "administered 
pursuant to the criterion established under Minnesota Statutes § 216C.414 subd. 2 ", the Rebate for 
Solar PV Modules  necessarily falls outside the scope of India 's request for consultations and the 
Panel 's terms of reference.  
IV. India Has Not Demonstrated a Breach of Article III:4 of the GATT 1994  
 
India has failed to establish that the measures at issue breach Article III:4 of the GATT 1994. 
In particular, India has not met its burden of demonstrating that these measures (1) "affect ", inter 
alia, the internal "use", "purchase " or "sale" of products; or (2) accord "less favourable " treatment 
to imported products within the meaning of that  provision.  
India has failed to establish that the "cost recovery incentives " provided 
under RECIP are inconsistent with Article III:4 of the GATT 1994  
 
India has provided no evidence that substantiates its assertion that "the measures at issue 
create a demand for equipment [manufactured in Washington] and insulate them from competing 
‘like products ' outside of Washington. "  Nor has India provided evidence that demonstrates that the 
measure at issue has modified the "conditions of competition " in Wa shington 's market for renewable 
energy products "to the determinant of imported products. " 
India has failed to establish that the California Manufacture Adder ( "SGIP 
Adder ") provided for under SGIP is inconsistent with Article III:4 of the 
GATT 1994  
 
India has provided no evidence that substantiates its assertion that the SGIP Adder operates 
to "induce [] " buyers to "purchase specified products of California -origin. "  Nor has India provided 
evidence demonstrating that the availability of the SGIP A dder otherwise operates to modify the 
"conditions of competition " in the market for renewable energy equipment in California "to the 
determinant of imported products. "  
India has failed to establish that the LAMC Adder provided for under SIP is 
inconsis tent with Article III:4 of the GATT 1994  
 
Affirmative evidence demonstrates that the LAMC Adder has not incentivized the "use" of solar 
power equipment or components manufactured in the city of Los Angeles . As noted above, the 
LADWP terminated the LAMC  Adder on December 6, 2016 because no one had sought to avail of the 
LAMC Adder since at least 2013 . Specifically, the Board Resolution stated that  
Similarly, the Los Angeles Manufacturing Credit will be  removed. There have been 
no requests for this manuf acturing credit for over three  years. (emphasis added).  
The fact that no one has even requested (much less received) the LAMC Adder since 2013 
contradicts India 's assertion that the Adder has incentivized the "use of certain components 
manufactured in  Los Angeles. "   WT/DS510/R/Add.1  
 
- 34 - 
 
  
India has failed to establish that the MTIEP is inconsistent with Article III:4 
of the GATT 1994  
 
The Montana Department of Transportation records indicate no entity has availed of MTIEP 
since 1995 . The fact that no entity has received a tax incentive under MTIEP in over two decades 
contradicts India 's assertion that MTIEP has incentivized the "use" of products of Montana -origin .  
India has failed to establish that the Montana Biodiesel Tax Credit is 
inconsistent with Article III:4 of the GATT 1994  
 
Montana Department of Revenue records indicate that no taxpayer has sought to claim the 
Biodiesel Tax Credit since 2011 . The fact that no entity has sought (much less received) the Biodiesel 
Tax Credit in seven years contradicts India 's assertion that the Biodiesel Tax Credit has incentivized 
the "use" of products of Montana -origin .  
India has failed to establish that the Biodiesel Refund is inconsistent with 
Article III:4 of the GATT 1994  
 
Montan a Department of Transportation records indicate that no taxpayer has ever applied for 
(much less received) the Biodiesel Refund . This clearly rebuts India 's assertion that the Biodiesel 
Refund has created a preference ( i.e., "incentivized ") "for biodiesel manufactured from Montana 
products. "   
India has failed to establish that the Connecticut Component Incentive 
("CCI") provided for under Connecticut 's RSIP  is inconsistent with Article 
III:4 of the GATT 1994  
 
India has provided no evidence to substantiate its suggestion that the CCI has played a 
"decisive " role in inducing consumers to "purchase " or "use" renewable energy components 
manufactured in Conne cticut .  
India has failed to establish that the "Michigan Equipment Multiplier " 
provided for under the RESP is inconsistent with Article III:4 of the GATT 
1994  
 
The evidence submitted by India with respect to the Michigan RESP in fact rebuts India 's own 
contentions that the Michigan Equipment Multiplier  has "induced " (i.e., incentivized) buyers to 
purchase renewable energy systems of "Michigan –origin " or rendered "‘like' imported products… 
undesirable in the eyes of [] potential buyer[s]. "  
India has failed to demonstrate the "Delaware Equipment Bonus " provided 
under REPSA is inconsistent with Article III:4 of the GATT 1994  
 
India has not demonstrated that the pros pect of receiving Bonus RECs incentivizes retail 
electricity suppliers to purchase renewable energy generation equipment made in Delaware . Under 
Delaware 's statutory scheme, "retail electricity suppliers " (i.e., companies that sell electricity to end -
use c onsumers)  and "generation units "  (i.e., the facilities that generate electricity) are distinct 
entities . "Generation units " generate  power, whereas retail electricity units distribute  the generated 
power to end -use customers . This means that "generation units " – not retail electricity providers – 
make purchasing decisions with respect to renewable energy generation equipment . 26 Del. C. § 
351(d), however, does not refer to "generation units" (vice retail electricity suppliers) much less 
indicate that they are eligible to earn Bonus RECs based on the amount of Delaware -made equipment 
or components used in their facilities .  
India has failed to demonstrate the Incentives and Rebates pr ovided for 
under the MSIP are inconsistent with Article III:4 of the GATT 1994  
 
Contrary to India 's assertion, affirmative evidence demonstrates that incentives and rebates 
available under the MSIP  have not incentivized the "use" or "purchase " solar "products of Minnesota -
origin. "   
The fact that solar installations linked the Solar PV Incentive have accounted for a negligible 
amount of overall solar PV installations in Minnesota, rebuts the suggestion that this measure has 
incentivized buy ers to "purchase " or "use" Solar PV systems or components made in Minnesota .  WT/DS510/R/Add.1  
 
- 35 - 
 
  
India has failed to demonstrate the "Massachusetts Manufacturer Adder " 
provided for under the SHWP is inconsistent with Article III:4 of the GATT 
1994  
 
India has provided no evidence demonstrating that the Massachusetts Manufacturer Adder  
operates to incentivize the "use" of solar hot water systems or components made in Massachusetts . 
In particular, India  does not proffer any data concerning how many individuals have availed 
themselves of the Manufacturer Adder, a notable omission given that the SHWP operated for nearly 
ten years .  
For the foregoing reasons, India has failed to demonstrate the "measure s at issue " in this 
dispute "affect " the "purchase " or "use" of products within the meaning of Article III:4 of the GATT 
1994.  
V. India Has Not Demonstrated a Breach of Article 2.1 of the TRIMs Agreement  
 
Given that India has failed to establish that the measures at issue are inconsistent with Article 
III:4 of the GATT 1994, India has necessarily  failed to establish they are inconsistent with Article 
2.1 of the TRIMs Agreement . The scope of the TRIMs Agreement extends only to measures that 
impose requi rements or conditions on an enterprise 's purchase or use of goods . 
The TRIMs Agreement does not define "trade -related investment measure " or otherwise 
specify the scope of that term . However, the context provided by the text of Agreement makes clear 
that the Agreement 's disciplines are concerned with measures that impose requirements or 
conditions on purchase, use, importation, or exportation of goods by enterprises . Conversely, 
measures that do not regulate such actions of enterprises  fall outs ide the scope of the TRIMs 
Agreement .   
Most of the "measures at issue " in the present dispute fall outside the scope of the TRIMs 
Agreement because they impose no requirements or conditions on enterprises ' purchases or uses of 
goods.  
The "cost reco very incentives " provided under RECIP impose no 
requirements or conditions on enterprises ' purchases or uses of goods and 
therefore fall outside the scope of the TRIMs Agreement  
 
There is no requirement that an entity be an "enterprise " (i.e., a "business firm " or "company ") 
in order to qualify to receive incentive payments under RECIP.  
The SGIP Adder imposes no requirements or conditions on enterprises ' 
purchases or uses of goods and the refore falls outside the scope of the 
TRIMs Agreement  
 
There is no requirement that a retail electricity customer be an "enterprise " (i.e., a "business 
firm" or "company ") in order to receive incentive payments under SGIP . Certainly, India has not 
demo nstrated that any such requirement exists .  
The LAMC Adder under the Los Angeles SIP imposes no requirements or 
conditions on enterprises ' purchases or uses of goods and therefore fall 
outside the scope of the TRIMs Agreement  
 
There is no requirement that a LADWP customer be an "enterprise " (i.e., a "business firm " or 
"company ") in order to receive incentive payments under SIP; India ha s certainly not demonstrated 
that any such requirement exists.  
The "incentives " provided under the RSIP impose no requirements or 
conditions on enterprises ' purchases or uses of goods and therefore fall 
outside the scope of the TRIMs Agreement  
 
As explained above, incentive payments under RSIP are available only to utility customers 
that own and occupy residential "family homes " in Connecticut .  To qualify of incentives under RSIP, WT/DS510/R/Add.1  
 
- 36 - 
 
  a residential property owner -occupier must purchase or lease a "solar photovoltaic (PV)  system " and 
install the system on their residential property.  
 Given that owner -occupiers of a residential property are the only legal entities eligible to 
receive  RSIP incentive payments, RSIP necessarily excludes "enterprises " (i.e., business firms or 
companies) from receiving such incentive payments .  
The incentives and rebates provided under the MSIP impose no 
requirements or conditions on enterprises ' purcha ses or uses of goods and 
therefore fall outside the scope of the TRIMs Agreement  
 
There was no requirement that a property owner be an "enterprise " (i.e., a "business firm " or 
"company ") in order to receive incentive payments under the MSIP.  
The re bates provided under the SHWP impose no requirements on 
enterprises ' purchases or uses of goods therefore fall outside the scope of 
the TRIMs Agreement  
 
The rebates provided under the SHWP are broadly available to residential, institutional, and 
commer cial customers that install "solar hot water systems " on their premises . An entity is not 
required to be an "enterprise " (i.e., a "business firm " or "company ") in order to qualify for a rebate 
under program.  
VI. Response to India 's Claims Under Article 3 of the SCM Agreement  
  
First, India has failed to make a prima facie case that the measures at issue involve a financial 
contribution by a government or p ublic body . At most, India has presented evidence that certain 
government entities had the legal authority to provide a contribution under the challenged measures .  
Second , India has failed to demonstrate that any of the measures at issue confer a "benefit" 
within the meaning of Article 1.1(b) of the SCM Agreement.  
India has failed to establish that the "cost recovery incentives " provided 
under RECIP confer a "benefit "   
 
India has failed to establish that the measure at issue under RECIP (hereinafter the 
"Washington Adder ") is a "subsidy " within the meaning of Article 1 of the SCM Agreement because 
India has not demonstrated that Washington Adder confers a "benefit " within  the meaning of Article 
1.1(b) of the Agreement.  
India argues that the Washington Adder confers a benefit on "two categories " of recipients: 
(1) individuals and entities that "receive " incentive payments under the Washington Adder; and (2) 
"local prod ucers " of renewable energy equipment or components .  
India has failed to demonstrate that the Washington Adder confers a "benefit " on direct 
recipients or local producers.  
India has failed to establish that the SGIP Adder confers a "benefit " 
 
India, has failed to establish that the SGIP Adder is "subsidy " within the meaning of Article 1 
of the SCM Agreement because India has not demonstrated that the Adder confers a "benefit " within 
the meaning of Article 1.1(b) of the Agreement . In particular, India has failed to demonstrate that 
the SGIP Adder confers a "benefit " either on direct recipients, or on local suppliers/producers.  
India has failed to establish that the LAMC Adder confers a "benefit " 
 
The LAMC  Adder is not within the Panel 's terms of reference because the LAMC Adder was no 
longer in legal effect when the Panel was established on March 21, 2017 .  
India has failed to establish that the LAMC Adder is "subsidy " within the meaning of Article 1 
of the SCM Agreement because India has not demonstrated that the Adder confers a "benefit " within 
the meaning of Article 1.1(b) of the SCM Agreement.  
India has failed to demonstrate that the LAMC Adder confers "benefit " on either direct 
recipients or l ocal producers.  WT/DS510/R/Add.1  
 
- 37 - 
 
  
India has failed to establish that the MTIEP confers a "benefit " 
 
India has failed to demonstrate that the MTIEP confers a "benefit " on ethanol distributors or 
local producers of Montana wood and wood products.  
India has failed to establish that Biodiesel Tax Credit confers a "benefit " 
 
India has failed to demonstrate that the Tax Credit confers a "benefit " on individual/corporate 
taxpayers or local producers of Montana feedstock.  
India has failed to establish that the Biodiesel Refund confers a "benefit " 
 
India has failed to demonstrate that the Biodiesel Refund confers a "benefit " on biodiesel 
distributors and the owners/operators of retail motor fuel outlets .  
India has failed to establish that the CCI provided for under Connecticut 's 
RSIP confers a "benefit " 
 
India has failed to establish that the CCI is a "subsidy " within the meaning of Article 1 of the 
SCM Agreement because it has not demonstrated that the CCI confers a "benefit " within the meaning 
of Article 1.1(b) of the SCM Agreement.  
India argues tha t the CCI confers a benefit on "two categories " of recipients: (1) Solar PV 
"System Owners " and the homeowners ( i.e., direct recipients); and (2) the local producers/ 
assemblers of the major system components ( i.e., indirect recipients).  
India has failed to demonstrate that the CCI confers a "benefit " on solar PV system 
owners/homeowners or local producers/assemblers of major system components.  
India has failed to demonstrate that the "Michigan Equipment Mu ltiplier " 
confers a "benefit " 
 
India has failed to establish that RECs issued under the Michigan Equipment Multiplier are 
"subsidies " within the meaning of Article 1 of the SCM Agreement because it has not demonstrated 
that Michigan Equipment RECs conf er a "benefit " within the meaning of Article 1.1(b) of the SCM 
Agreement.  
India has failed to establish the "Delaware Equipment Bonus " provided 
under REPSA confers a "benefit " 
 
India has failed to establish that RECs issued under the Delaware Equip ment Bonus are 
"subsidies " within the meaning of Article 1 of the SCM Agreement because it has not demonstrated 
that the Delaware Equipment Bonus confers a "benefit " within the meaning of Article 1.1(b) of the 
SCM Agreement.  
India has failed to demonstrate the "Incentives " or "Rebates " provided for 
under the MSIP confer a "benefit "  
 
India has failed to establish that "incentive " and "rebate " measures at issue under the MSIP 
are "subsidies " within the meaning of Article 1 of the SCM Agreement because it has not 
demonstrated that such measures confer a "benefit " within the meaning of Article 1.1(b) of the SCM 
Agreement.  
India has failed to demonstrate the "Massachusetts Manufacturer Adder " 
confers a "benefit " 
 
India has failed to establish that the Massachusetts Manufacturer Adder (provided for under 
the Commonwealth SHWP) is "subsidy " within the meaning of Article 1 of the SCM Agreement 
because it has not demonstrated that the Adder confers a "benefit " within the mea ning of Article 
1.1(b) of the SCM Agreement.  
VII. Response to India 's Claims under Article 25.2 of the SCM Agreement  
 
As the United States has explained in section VI above, India has failed to establish that the 
measures at issue in this dispute meet the definition of a "subsidy " within the meaning of Article 1 
of the SCM Agreement . Consequently, India has also failed to  establish that the United State was 
obligated to notify the measures at issue pursuant to Article 25.2 of the SCM Agreement.  WT/DS510/R/Add.1  
 
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  VIII. Conclusion  
 
The United States requests that the Panel find that India has failed to meet its burden of 
showing that the U.S. measures at issue are inconsistent with Article III:4 of the GATT 1994, Article 
2.1 of the TRIMs Agreement, and Articles 3.1(b), 3.2, and 25.2 of the SCM Agreement.  
 In addition, the United States requests that the Panel find that the LAMC Adder , the 
Massachusetts Manufacturing Adder , the Solar Thermal Rebate , and the Solar PV Rebate  fall outside 
of the Panel 's terms of reference and deny Ind ia's request for legal findings with respect to those 
measures.  
 
EXECUTIVE SUMMARY OF U.S. OPENING ORAL STATEMENT AT THE FIRST SUBSTANTIVE 
MEETING OF THE PANEL  
I. INTRODUCTION  
As explained in the United States ' first written submission, India has failed to make a prima 
facie case that any of the measures at issue in this dispute are inconsistent with U.S. obligations 
under the GATT 1994, the TRIMs Agreement, or the SCM Agreement .  
II. INDIA HAS NOT DEMONSTRATED A BREACH OF ARTICLE III:4 OF THE GATT 1994  
The Appellate Body has found that the determination of whether a measure accords "less 
favourable " treatment to imported products within the meaning of Article III:4 cannot rest on a 
"simple assertion ", but mus t also assess the measure 's "implications in the marketplace. "  In this 
dispute, India 's chosen framework for meeting this fundamental burden is to attempt to prove that 
that the measures at issue "incentivize " the purchase or use of locally manufactured p roducts .  
None of the evidence proffered by India demonstrates that the measures at issue have 
incentivized the purchase or use of locally manufactured renewable energy products . First, for some 
of the measures at issue, the data that India relies upon at most suggests that the measures may 
have incentivized the purchase or use of renewable energy equipment in general – that is, 
irrespective of origin . Second , in some cases, India 's own evidence refutes the conclusion that the 
measures at issue have inc entivized the purchase or use of locally made renewable energy 
equipment . Third, for some of the programs, the record evidence shows that few individuals have 
ever applied to receive incentives or benefits under the challenged measures .  
Having failed t o demonstrate that the measures at issue operate to incentivize the purchase 
or use of locally manufactured renewable energy products, India has thus failed to establish that the 
measures "affect " the "use" of such products within the meaning of Article II I:4 (much less 
demonstrate that the measures accord "less favorable " treatment to imported products) . 
Accordingly, India has failed to make a prima facie  case that the measures at issue are inconsistent 
with Article III:4 of the GATT 1994.  
III. INDIA HAS NOT DEMONSTRATED A BREACH OF ARTICLE 2 OF THE TRIMs 
AGREEMENT  
Most of the measures at issue in this dispute do not fall within the scope of the TRIMs 
Agreement . Rather, the TRIMs Agreement covers measures that impose requirements or conditions 
on purchase, use, importation, or exportation of goods by enterprises . Conversely, measures that 
do not regulate such actions of enterprises  fall outside the scop e of the TRIMs Agreement .   
First, the numerous references to "enterprises " in Article 5 of the TRIMs Agreement –  in 
particular, the phrases "enterprises which are subject to a TRIM " and "a TRIM…applicable to [] 
established enterprises " – indicates tha t TRIMs are measures that impose requirements or conditions 
on enterprises . Second , the text of the Illustrative List of the Annex to the TRIMs Agreement provides 
further evidence that the scope of the TRIMs Agreement is limited to measures that impose 
requirements on enterprises . Based on this context, TRIMs are measures that impose requirements 
on enterprises.  
Most of the measures at issue in this dispute are focused on end -consumers, and impose no 
requirements or conditions on enterprises  with respec t to purchase or use of goods . In particular, 
as explained in the United States ' first written submission, the Washington State , Los Angeles , 
California , Connecticut , Minnesota , and Massachusetts  measures are not within the scope of the 
TRIMs Agreement bec ause they impose no requirements on enterprises with respect to the purchase 
or use of goods.  WT/DS510/R/Add.1  
 
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  IV. INDIA HAS NOT DEMONSTRATED A BREACH OF ARTICLE 3 OF THE SCM AGREEMENT  
India has failed to establish that the measures at issue are inconsistent with U.S. obligations 
under the SCM Agreement . In particular, India has not met its burden of demonstrating that the 
measures at issue involve a "financial contribution " within the meaning of Article 1.1(a) of the SCM 
Agreement, or confer a "benefit " within the meaning of Article 1.1(b) of the SCM Agreement .  
First, India has not presented evidence that any "financial contributions " have been disbursed 
under the measures at issue . At most, India has presented evidence that certain entities had the 
legal authority to provide such a contribution under the challenged measures .  
Second , with respect to the element of "benefit, " India appears to advance contradictory 
arguments . On the one hand, India argues that the measures at issue confer a "benefi t" on the 
homeowners, businesses, etc. that install qualifying renewable energy equipment by allowing them 
to purchase renewable energy products at an effective discount . On the other hand, India argues 
that measures at issue also confer a "benefit " on "local producers " of renewable energy equipment . 
However, as the United States has explained, India 's own approach to calculating the "benefit " 
conferred on direct recipients appears to leave no room for any additional "benefit " to be conferred 
on local produ cers.  
Instead, India argues that the measures at issue confer a "benefit " on local producers in the 
form of "increased sales. "  As the United States has explained, India has failed to show that the 
measures at issue have incentivized the purchase of locally made renewable energy equipment in a 
way that would result in additional sales for local producers.  
For the foregoing r easons, India has not met the burden of demonstrating that the measures 
at issue are inconsistent with U.S. obligations under the SCM Agreement.  
 
EXECUTIVE SUMMARY OF RESPONSES OF THE UNITED STATES TO THE PANEL 'S 
QUESTIONS FOLLOWING THE FIRST SUBSTANTIVE MEETING OF THE PANEL  
As noted in the following U.S. responses to the Panel 's questions, the United States is not in 
a position to provide detailed answers to a number of questions because India failed to make  out its 
prima facie case in its first written submission .  
In particular, India failed to explain how each requisite element of each of its legal claims 
specifically applied to the specific measures at issue . This fundamental flaw in India 's first writ ten 
submission is particularly acute with respect to India 's claims under the TRIMs Agreement and the 
SCM Agreement . In prior disputes, the types of measures challenged by India have been addressed 
under Article III:4 of the GATT 1994 . In contrast, and as India does not dispute, the purported 
application of the TRIMs Agreement and the SCM Agreement to consumer incentive programs is 
novel . To make out such claims, a complaining Member would need to present a well -formed legal 
argument explaining its interpre tation of the relevant provision, and further explain how under that 
interpretation, each element of its claims could apply to consumer programs . India has not done so . 
Indeed, when pressed at the first substantive meeting, India in essence repeated the co nclusory 
allegations in India 's request for panel establishment, without providing any supporting 
argumentation .  
In making this introductory comment, the United States should not be understood as 
suggesting that India may attempt to establish its prima  facie case in subsequent submissions . To 
the contrary, under paragraph 3 of the Panel 's Working Procedures, India was required to present 
its arguments in its first written submission . In contrast, also under paragraph 3 of the Working 
Procedures, the sec ond written submission is for purposes of rebuttal . India has not presented any 
basis for why India should be excused from the fundamental requirement that a complaining Member 
must present its prima facie  case in its first submission .  
Furthermore, it would be completely inconsistent with the Working Procedures, as well as 
procedural fairness, for India to wait until after it had first reviewed responses of the United States 
and third parties on the general interpretive issues raised in the Panel 's ques tions (but unaddressed 
in India 's first submission) in order to attempt to make out a prima facie case. The Panel -questions -
and-response process is not intended to be an exercise in which the complaining Member can 
conduct an initial exploration of the rel evant legal issues, after which the complaining Member can 
then attempt to formulate its legal arguments .  
 WT/DS510/R/Add.1  
 
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  ANNEX B -4 
SECOND  INTEGRATED EXECUTIV E SUMMARY OF THE ARG UMENTS OF THE UNITED  STATES  
EXECUTIVE SUMMARY OF U.S. SECOND WRITTEN SUBMISSION  
 
In this submission, the United States primarily responds to certain new arguments that India 
advanced at the first meeting of the Panel with the parties and in written responses to questions 
from the Panel . In short, n one of these arguments are convincing or serve to make out India 's case 
that the measures at issue are inconsistent with U.S. obligations under the General Agreement on 
Tariffs and Trade 1994  ("GATT 1994 "), the Agreement on Trade -Related Investment Measure s 
("TRIMs Agreement "), or the Agreement on Subsidies and Countervailing Measures  ("SCM 
Agreement ").    
India Has Not Made out a Case that the Measures at Issu e are Inconsistent with 
Article  III:4 of the GATT 1994  
To prevail on a claim under Article III:4, a complaining party must meet its basic burden of 
argument . India argues that the measures at issue accord "less favorable " treatment within the 
meaning of Article III:4 because they incentivize the "purchase " or "use" of locally manufactured 
renewable energy products . Accordingly, having asserted this approach as the basis for its case, 
India must meet its burden of showing – through specific and detailed analysis – how each measure 
at issue operates in the manner India asserts . India failed to do so.  
India's arguments on the purported "incentivizing " effects of the measures at issue are 
comprised primarily of conclusory statements that are unsupported by an analysis of the challenged 
measures or the markets in which the measures operate .  
At paragraph 57 of its first written submission India descri bes certain aspects of the measures 
at issue under RECIP  (Measure 1)  and then – without providing any intervening analysis – begins 
paragraph 58 with the declaration that "Given the measures at issue incentivize [] the use of certain 
specified products man ufactured in Washington ..."  In other words, India simply takes it as a "given " 
that the RECIP  measures incentivize the "use" of products made in Washington without first 
analyzing whether the measures – in light of their "design, structure, and expected o peration " – are 
even likely to have such an incentivizing effect . This pattern is repeated through India 's first written 
submission.  
At paragraph 176 of its first written submission, India briefly characterizes the measures at 
issue under SGIP  (Measure  2) and then immediately declares that "a potential buyer will prefer to 
purchase " locally made products "over those which are imported. "   
At paragraph 679 of its first written submission, India briefly describes the measures at issue 
under the CRSIP  (Measure 7 ) and then declares that "any incentive would play a decisive role in 
the choice a consumer makes between domestic and imported products. "   
At paragraph 782 of its first written submission, India characterizes the measures at issue 
under RESPM  (Measure 8) , and then states "Since the buyers are induced to purchase 'renewable 
energy system' [sic] of Michigan -origin, the 'like' imported products , which are negated the equality 
of opportunity , become undesirable in the eyes of a potential buyer. "   
Similarly, after briefly characterizing the measures at issue under RESPA (Measure 9)  at 
paragraphs 877 and 878 of its first written submission, Ind ia immediately states that "In view of the 
additional incentives, a potential buyer [ i.e., a "retail electricity supplier "] will prefer to purchase " 
locally -manufactured renewable energy equipment .  WT/DS510/R/Add.1  
 
- 41 - 
 
  
India's analytical omissions with respect to the measu res at issue under SEPI (Measure 10)  
are particularly glaring . India is challenging three separate measures under SEPI . Again, India 
appears to simply presume that each of the measures incentivize the purchase or use of products 
made in Minnesota because t here are certain "financial advantages " or "rebates " available to 
consumers under SEPI . India, however, does not support this presumption with an analysis of the 
measures ' design, structure, or expected operation on Minnesota 's market for renewable energy 
products .  
Given that India has chosen to argue that the measures at issue accord "less favorable 
treatment " to imported products by incentivizing the purchase or use of domestic products, India 
does bear of the burden of demonstrating that the challenged measures are bound or likely to have 
such incentivizing effects . For the foregoing reasons, India has failed to do so. Accordingly, the Panel 
should find that India has  failed to establish that the measures at issue are inconsistent with Article 
III:4 of the GATT 1994.  
India Has Not Made out a Case that the Measures at Issue are Inconsistent with 
Article 2.1 of the TRIMs Agreemen t  
The text of the relevant provisions of the TRIMs Agreement makes clear that the Agreement 's 
disciplines are concerned with measures that impose requirements or conditions on the purchase, 
use, importation, or exportation of goods by enterprises .  
In its statements to the Panel and responses to Panel questions, India has advanced several 
new arguments to support its view that the measures at issue fall within the scope of the TRIMs 
Agreement . As explained below, each of India 's new arguments is wi thout merit .  
The measures at issue do not impose any direct or indirect purchase or use 
requirements on enterprises that manufacture renewable energy equipment  
 
India does not appear to dispute that most of the measures at issue impose no explicit 
purchase or use requirement on enterprises . Instead, India now argues that the measures impose 
"indirect " or implicit requirements that enterprises must fulfill to obtain an "advantage " within the 
meaning of paragraph 1(a) of the Illustrative List of the Annex to the TRIMs Agreement . These 
arguments are unconvincing .  
India has not demonstrated that a renewable -equipment -manufacturing enterprise would 
need to source any of the inputs  used in the manufacturing process from local suppliers in order to 
obtain the advantages alluded to by India.  
Even if a manufacturing enterprise must conduct its manufacturing activities within a certain 
jurisdiction in order to obtain an advantage, this does not mean that the enterprise would need to 
"purchase " or "use" products that are made in that jurisdiction . As India appears to acknowledge, a 
manufacturing enterprise could simply "shift[] investments " into a local jurisdiction instead of 
"purch asing " or "using " any "products of local origin " in the production process .  
For the foregoing reasons, India has failed to establish that the measures indirectly or 
implicitly require manufacturing enterprises to purchase or use "products of domestic origin " in order 
to "obtain an advantage " within the meaning of paragraph 1(a) of the Illustrative List.  
The "object and purpose " of the TRIMs Agreement does not support the view that 
the Agreement 's scope extends beyond measures that impose purchase or use 
requirements on enterprises   
 
India suggests that measures with the potential to have trade -restrictive, distortive, or 
discriminatory effects fall within the scope of the TRIMs Agreement, even if  they impose no 
requirements or conditions on enterprises . India argues that this interpre tation flows from the object 
and purpose of the TRIMs Agreement . India's argument has two unsurmountable problems .  
First, under customary rules of interpretation, the text of the agreement must be interpreted 
in accordance with their ordinary meaning,  in their context, and in light of the object and purpose WT/DS510/R/Add.1  
 
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  of the agreement . Here, the terms of the agreement explicitly state that the relevant purchase or 
use is "by an enterprise. "   
Second , and furthermore, India 's proposed "object and purpose " of the TRIMs Agreement is 
not correct . As the United States explained in its prior submissions, the preamble of the TRIMs 
agreement states that an objective of the agreement is "to facilitate investment across international 
frontiers. "  Thus, it makes sense fo r the relevant text in the TRIMs Agreement to impose disciplines 
on measures affecting purchase or use by an enterprise, as an enterprise could potentially be 
associated with an investment across international frontiers .  
Indeed, the similarity between  the object and purpose of the GATT 1994 and India 's position 
on the object and purpose of the TRIMs Agreement undermines India 's argument regarding the 
intended scope of the TRIMs Agreement . In particular, the measures that fall within the scope of the 
TRIMs Agreement are, by definition , a narrower subset of measures that fall within the scope of 
Article III:4 of the GATT 1994 . India's interpretive approach would render the TRIMs Agreement 
essentially superfluous in light of Article III:4 of the GATT 1994 . India's litigation position thus 
contravenes core principles of treaty interpretation .  
In sum, India 's "object and purpose " argument does not support the view that the scope of 
the TRIMs  Agreement extends to measures that impose no requirements or conditions on 
enterprises ' purchases or use of goods.  
India has failed to establish that the term "enterprise " can encompass "persons 
who engage in any economic activity such as purchasing re newable energy 
equipment " 
 
The ordinary meaning of "enterprise " refers to a "business firm " or "company. "  In light of the 
preambular language of the TRIMs Agreement, the relevant business firm or company would be of 
the type that could be involved in a cross -border investment . India's response is to rely on irrelevant 
findings by the Appellate Body in US – Washing Machines . In particular, based on that report, India 
argues that the term "enterprise " can encompass any "person engaged in any economic activity, 
such as purchasing renewable energy equipment. "  As explained below, however, none of the 
Appellate Body 's reasoning in  US – Washing Machines  supports such an interpretation for the term 
"enterprise " within the meaning of the TRIMs Agree ment (or any other covered Agreement for that 
matter).  
First, the United States notes that the Appellate Body did not interpret the meaning of the 
term "enterprise " in US – Washing Machines , but rather the phrase "certain enterprises " within the 
meani ng of Article 2.2 of the SCM Agreement .  
Second , the issue in US – Washing Machines  was whether the term "certain enterprises " 
pertained only to where a company  was legally incorporated or whether other parts of a business 
could be the recipient of a "subsidy " within the meaning of the SCM Agreement . While the Appellate 
Body noted that a "wide variety of economic actors " could be the recipient of a "subsidy " within the 
meaning of Article 1 of SCM Agreement, it did not state or imply that any "person[] w ho engages in 
any economic activity " is an "enterprise " within the meaning of the SCM Agreement .  
 India has therefore failed to adduce any legal support for the contention that the term 
"enterprise " can encompass "persons who engage in any economic activity such as purchasing 
renewable energy equipment. "  India has provided no basis to consider that a  special meaning should 
replace the ordinary meaning of the term "enterprise, " i.e., a "business firm " or company.  
For the foregoing reasons, the United States reiterates that the Panel should find that India 
has not made out its case by demonstrating  that each of the measures at issue is an investment 
measure within the scope of the TRIMs Agreement.  
India Has Not Made Out a Case That the Measures at Issue Are Inconsistent With 
Article 3 of the SCM Agreement  
In its statements to the Panel and responses to Panel questions, India makes some new 
arguments to attempt to bolster its claim that the measures at issue provide for subsidies that are WT/DS510/R/Add.1  
 
- 43 - 
 
  inconsistent with Article 3.1(b) and 3.2 of the SCM Agreement . As explained below, however, India 's 
new a rguments do not cure the deficiencies in India 's first written submission .  
India has failed to establish that the measures at issue involve a "financial 
contribution " within the meaning of Article 1.1(a) of the SCM Agreement  
 
India argues that it need not demonstrate that a financial contribution has been made in order 
to establish that a "subsidy " exists within the meaning of the SCM Agreement . Specifically, India 
references Article 3.2 of the SCM Agreement, which provides tha t Members "shall neither grant nor 
maintain " the subsidies prohibited under Article 3.1 . India asserts that the inclusion of the term 
"maintain " in Article 3.2 of the SCM Agreement indicates that "whether a Member has actually made 
a financial contribution  is irrelevant " to establishing whether "there is a financial contribution " within 
the meaning of Article 1.1(a)(1) of the Agreement .  
India's reliance on the term "maintain " is misplaced . Under Article 3.2 of the SCM Agreement, 
the object of the verb "maintain " is the noun "subsidies. "  The term "subsidy " is in turn defined in 
Article 1 of the SCM Agreement, and Article 1 requires a financial contribution . Thus, nothing in the 
use of the verb "maintain " indicates any derogation from the requirement tha t a subsidy requires a 
financial contribution .  
Furthermore, the ordinary meaning of the term "maintain " – read in context with Article 3.2 
– does not support India 's implicit argument that "there is a financial contribution " within the 
meaning of Article 1.1(a)(1) of the SCM Agreement whenever a measure gives certain entities the 
legal authority to provide such a contribution . The ordinary meaning of "maintain " is to "preserve or 
maintain " or "cause to continue. "  The inclusi on of the term "maintain " in Article 3.2 ( i.e., Members 
"shall neither grant nor maintain ") simply means that Members may not maintain prohibited 
subsidies beyond the initial grant of the subsidy .  
For the foregoing reasons, India has failed to support its argument that "there is a financial 
contribution " within the meaning of Article 1.1(a)(1) of the SCM Agreement, whenever certain 
entities may have the legal authority to provide such a contribution  under a measure at issue .  
India has failed to establish that the measures at issue confer a "benefit " within 
the meaning of Article 1.1(b) of the SCM Agreement  
 
In its first written submission, India did not even present a single theory of "benefi t". Rather, 
India argued that the measures at issue might confer a "benefit " on (1) direct recipients in the 
amount of the "financial contribution " granted to the recipient; and/or (2) local/seller producers in 
the form of "additional sales. "   India's arguments in this regard are based on India 's "assumptions " 
and not supported by record evidence or relevant economic analyses .  
India now appears to advance an alternative factual scenario . Specially, India posits that the 
entirety of the "benefit " initially conferred on direct recipients ( i.e., homeowners) is somehow 
transferred to local sellers/producers of renewable energy equipment . This differs, however, from 
the fact -pattern that India set out in its first written submission .  
There fore, India appears to advance inconsistent theories in support of its argument that the 
measures at issue confer a "benefit " within the meaning of Article 1.1(b) of the SCM Agreement . As 
the complaining party, however, India bore the burden of establishin g its prima facie  case in its first 
written submission, by demonstrating what it believes the facts are. This means that it is not 
sufficient for India to simply put forward different versions of what the facts might be. And, by now 
presenting yet another possible theory of benefit, India has in fact further confirmed that it did not 
present a prima facie  case of benefit in its first written submission.  
Accordingly, there is no basis for the Panel to conclude that India has made a prima facie  
showing t hat the measures at issue confer a "benefit " within the meaning of Article 1.1(b).  
India has failed to establish that the measures at issue are "contingent … upon the 
use of domestic over imported goods " within the meaning of Article 3.1(b) of the 
SCM Agreement  
 WT/DS510/R/Add.1  
 
- 44 - 
 
  
In its statements to the Panel and responses to questions from the Panel, India does not 
appear to have set out any new arguments in support of its claim that the measures at issue are 
"contin gent … upon the use of domestic over imported goods " within the meaning of Article 3.1(b) 
of the SCM Agreement . The United States therefore reiterates its view that India has failed to make 
out a case that the measures at issue are so "contingent " within t he meaning of that provision.  
 
EXECUTIVE SUMMARY OF U.S. OPENING ORAL STATEMENT AT THE SECOND SUBSTANTIVE 
MEETING OF THE PANEL  
Introduction  
As the United States has noted, India has brought this dispute not to enhance its ability to 
export products  to the United States, but rather to enhance India 's ability to maintain the 
discriminatory Indian solar measures that the DSB found to be inconsistent with India 's WTO 
obligations . For India to bring a dispute for this purpose amounts to a misuse of the d ispute 
settlement system .  
Nonetheless, the DSB has established this panel, with standard terms of reference, and the 
panel must issue a report in accordance with the DSU . The Panel may consider the reasons behind 
this case in deciding on the extent to  which the Panel exercises its discretion to use judicial economy . 
The United States recalls that rulings made by the DSB "shall be aimed at achieving a satisfactory 
settlement of the matter. "  Particularly where there is no trade interest involved, the Pa nel should 
consider the extent to which it needs to reach India 's claims that raise the same basic issues under 
three different WTO agreements .  
As the United State has explained in prior submissions and statements to the Panel, India has 
failed to mak e out a prima facie  case that any of the measures at issue breach U.S. obligations under 
any covered agreement . In this Opening Statement, the United States will briefly summarize why 
India has failed to meet its burden of argument for each claim and respo nd to some of the new 
arguments in India 's second written submission.  
India Has Still Not Made Out a Case That The Measures At Issue Breach Article 
III:4 of the GATT 1994  
The argumentation in India 's first written submission does not substantiate India 's assertion 
that the measures incentivize the "purchase " or "use" of domestic products . Rather, the 
incentivization "arguments " advanced in India 's first written submission consist of two elements . 
First, India made conclusory statements that are unsupported by any analysis of the challenged 
measures or the markets in which the measures operate . Second , India presented arguments 
relating to supposed actual trade effects . The United States has shown that  India's trade effects 
arguments are unsupported by the evidence upon which India relied . India's reliance on conclusory 
allegations, and flawed evidence of supposed trade effects, does not meet India 's burden of 
argument.  
India Has Still Not Made Out  a Case That the Measures At Issue Are Inconsistent 
with Article 2 of the TRIMs Agreement  
Measures that are not inconsistent with Article III:4 of the GATT are necessarily not 
inconsistent with Article 2 of the TRIMs Agreement . Therefore, having failed  to make out a prima 
facie case that the measures at issue are inconsistent with Article III:4 of the GATT 1994, India has 
likewise failed to establish that the measures breach Article 2 of the TRIMs Agreement .  
Moreover, as the United States has explained, most of the measures at issue in this dispute 
fall outside the scope of the TRIMs Agreement because they are focused on final end -use consumers, 
not enterprises . In subsequent submissions to the Panel, India ad vanced three  new arguments to 
support its view that the measures at issue fall within the scope of the TRIMs Agreement . Each of 
India's arguments on this score is without merit.  
First, India 's argument that the term "enterprise " can refer to "any person…who engages in 
economic activity, such as purchasing renewable energy equipment " is without foundation .   India WT/DS510/R/Add.1  
 
- 45 - 
 
  contends that the Appellate Body Report in US – Washing Machines  supports this expansive definition 
of the term "enter prise. "  India's reliance on US – Washing Machines is misplaced.  
While the Appellate Body noted that a "wide variety of economic actors " could be the recipient 
of a "subsidy " within the meaning of Article 1 of SCM Agreement, it did not – as India sugg ests – 
state or imply that "any person…who engages in an economic activity in a market place is an 
enterprise " within the meaning of the SCM Agreement, the TRIMs Agreement, or any other covered 
agreement for that matter . Indeed, in the US – Washing Machine s dispute, each one of the 
enterprises at issue was a corporate facility . Accordingly, India has given the Panel no reason to 
depart from the ordinary meaning of the term —that is, a "business firm " or "company. "  
Second , the "object and purpose " of the  TRIMs Agreement does not support India 's argument 
that the scope of the Agreement extends to any measure that could have a restrictive, distortive, or 
discriminatory effect on trade, even if  the measures impose no requirements or conditions on 
enterprises .  In short, India mischaracterizes the "object and purpose " of the TRIMs Agreement .  
The objective of the TRIMs Agreement – as reflected in its preamble – is "to facilitate investment 
across international frontiers. "   Cross -border investments are typically made in the form of 
investment in enterprises, not through payments or incentives to homeowners or other private 
persons like most of the measures at issue in this dispute . In this sense, the "object and purpose " 
of the TRIMs Agreement confirms that that Agreement is focused on disciplining measures that 
impose "purchase " or "use" requirements on enterprises .  
Third, India has not substantiated its theory that the measures at issue impose "indirect " or 
implicit r equirements on manufacturing enterprises by "inducing " them to purchase or use locally -
made inputs . At most, India has shown that an enterprise may need to conduct its manufacturing 
activities within a certain jurisdiction in order to indirectly obtain an advantage; this does not mean, 
however, that the enterprise must "purchase " or "use" any products that are made in that 
jurisdiction . Indeed, even India appears to acknowledge that a manufacturing enterprise could 
"shift[] investments " into a local jurisdi ction instead of "purchasing " or "using " any "products of local 
origin " in the production process.  
 Accordingly, India has failed make out its claim that the measures at issue are covered by 
paragraph 1(a) of the Illustrative List of the Annex to the TRIMs Agreement.  
India Has Not Demonstrated a Breach of the SCM Agreement  
In this statement, the United States will focus its remarks on the element of "benefit, " 
including new arguments that India has made with respect to this element in its second written 
submission . As the United States has explained in earlier submissions, India failed to put forward a 
specific, defined theory of how each one of the measures at  issue confer a "benefit " within the 
meaning of Article 1.1(b) of the SCM Agreement .  
India's inability to articulate a coherent theory of "benefit " is fatal to its claims under the SCM 
Agreement because, as the complaining party, India bore the burden  of establishing its prima facie  
case in its first written submission, by demonstrating what the facts are, and by explaining precisely 
how the relevant WTO disciplines apply to the specific measures at issue . It is not sufficient for India 
to simply put f orward different versions of what the facts "may"  be. And, by introducing a third 
possible theory of "benefit " in its second written submission, India has further confirmed that it did 
not make out a prima facie  case of "benefit " in its first written subm ission . Accordingly, there is no 
basis for the Panel to conclude that India has made a prima facie  showing that the measures at issue 
confer a "benefit " within the meaning of Article 1.1(b).  
In this regard, the United States takes note of the extraordi nary statement from India 's second 
written submission that "It does not matter which all [sic] economic actors may be the recipients of 
a benefit. "     Of course, the question of who receives a "benefit " is fundamental to the inquiry of 
whether a "benefit " has been "conferred " within the meaning of Article 1.1(b) . As the Appellate Body 
has stated, "[a] ‘benefit ' does not exist in the abstract, but must be received and enjoyed by a 
beneficiary or a recipie nt."  India's continued failure to clarify the relevant "recipients " under the 
measures at issue means that India has still failed to establish that any of the measures confer a 
"benefit " within the meaning of Article 1.1(b) of the SCM Agreement.  WT/DS510/R/Add.1  
 
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  EXECUTIV E SUMMARY OF CERTAIN RESPONSES OF THE UNITED STATES TO THE PANEL 'S 
QUESTIONS FOLLOWING THE SECOND SUBSTANTIVE MEETING OF THE PANEL  
RESPONSE TO QUESTION 115 (a) and (b)  
As with all the measures at issue in this dispute, India 's legal claims in relation  to Measure 9  
rely on the threshold understanding that the measure requires government conduct that would be 
inconsistent with the aforementioned agreements (or precludes conduct consistent with those 
agreements) . Accordingly, India bore the burden of putt ing forth evidence and argumentation 
sufficient to demonstrate that Measure 9  meets this threshold condition .  
 
 
_______________  
 
 
 WT/DS510/R/Add.1  
 
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ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex C -1 Integrated executive summary of the arguments of Brazil  48 
Annex C -2 Integrated executive summary of the arguments of China  50 
Annex C -3 Integrated executive summary of the arguments of the European Union  53 
Annex C -4 Integrated executive summary of the arguments of Japan  56 
Annex C -5 Integrated executive summary of the arguments of Norway  60 
 WT/DS510/R/Add.1  
 
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ANNEX  C-1 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF BRAZIL  
I.  THE GATT 1994 AND THE SCM AGREEMENT PERMIT THE PAYMENT OF SUBSIDIES 
EXCLUSIVELY TO DOMESTIC PRODUCERS  
 
1. Paragraph 8 of Article III of GATT 1994 is an exemption to the national treatment principle 
enshrined in the other paragraphs of Article III1. By stipulating that Article III does not prevent the 
payment of subsidies exclusively to domestic producers, paragraph 8(b) clearly allows WTO Members 
to discriminate between domestic and foreign producers when it comes to programs designed to 
subsidize na tional industry2. By their definition, s ubsidies affect the conditions of competition in the 
domestic market and, were it not for Article III:8(b), would entail a violation of Article III of the 
GATT 1994.  
 
2. Moreover, Article 3.1(b) of the SCM Agreement proscribes the granting of subsidies 
"contingent, whether solely or as one of several other conditions, upon the use of domestic over 
imported goods ". Consistently with Article III:8(b) of the GATT 1994, Article 3 of the SCM Agreement 
does not prohibit the  subsidization of domestic production.  According to the Appellate Body in US – 
Tax Incentives , "Article 3.1(b) does not prohibit the subsidization of domestic 'production ' per se but 
rather the granting of subsidies contingent upon the 'use', by the subsidy recipient, of domestic over 
imported goods ". The Appellate Body  affirmed that subsidies "that relate to domestic production are 
therefore not, for that reason alone, prohibited under Article 3 of the SCM Agreement ".3 
 
 
II. TRADE EFFECTS DO NOT SUFF ICE AS EVIDENCE OF A BENEFIT UNDER ARTICLE 1.1(B) 
OF THE SCM AGREEMENT  
 
3. In order to establish the existence of a subsidy, the complainant must demonstrate both a 
financial contribution and a benefit. While the benefit to a direct recipient of a financi al contribution 
may be easily discernable, for example in cases of grants or revenue foregone, an "indirect 
beneficiary " cannot be considered a recipient of the benefit without further scrutiny.  
 
4. In the present case, India seems to allege that, because  of the requirement upon recipients 
of certain financial contributions to buy local goods, the producers of such goods would be, ipso 
facto, better off, because the demand for their products would increase, which would suffice to 
demonstrate the benefit to  "indirect beneficiaries ". India raises the precedent in Brazil – Aircraft 
(Article - 21.5 - Canada II) , stating that an aircraft producer could benefit from an export guarantee 
provided to the purchaser of the aircraft.4 
 
5. Brazil understands that a simp le presumption of additional sales is not enough to demonstrate 
that certain producers which might be affected positively by the subsidy are themselves recipients 
of that subsidy. The Arbitrator in US – Upland Cotton (Article 22.6 – US I)  noted that "additional 
sales" should be characterized as "trade effects " rather than a benefit within the meaning of Article 
1.1(b) of the SCM Agreement5. The Arbitrator also addressed the panel 's decision in Brazil – Aircraft 
noting that, in that case, "it was incumbent on Canada 'to establish that the benefit derived from 
PROEX III payments is passed through in some way to producers of regional aircraft '"6. 
 
                                                
1 US – Tax Incentives , Appellate Body Report, pa ra 5.16; Appellate Body Report, EC and certain 
member states – Large Civil Aircraft (21.5) , para. 5.62.  
2 Brazil – Taxation , Panel Report, para. 7.84.  
3 US – Tax Incentives, Appellate Body Report, para. 5.16.  
4 See, for instance, India’s First Written Subm ission, paras. 103 – 105. 
5 US – Upland Cotton (Article 22.6 – US I), Decision by the Arbitrator, para. 4.149.  
6 US – Upland Cotton (Article 22.6 – US I), Decision by the Arbitrator, footnote 199.  WT/DS510/R/Add.1  
 
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  6. Brazil believes that a similar standard should be applied in the p resent dispute. It would be 
incumbent on India to demonstrate if and how the financial contributions granted to the direct 
beneficiaries passed through to the indirect beneficiaries, beyond the mere assertion of possible 
trade effects. While trade effects are relevant for claims brought under Part III of the SCM Agreement 
(which India chose not to do), it does not suffice for a proper benefit analysis under the SCM 
Agreement.  
 
III. TRADE EFFECTS ARE NOT SUFFICIENT EVIDENCE UNDER ARTICLE 3.1(B) OF THE SCM 
AGREEMENT  
 
7. Brazil believes that an assertion of additional sales which might occur as an effect of a subsidy 
is, as mentioned, relevant for actionable subsidies and adverse effects violations, but is not apposite 
for an "import substitution " contingency. The Appellate Body has been clear in this regard, 
understanding that "subsidies can ordinarily be expected to increase the supply of the subsidized 
domestic goods in the relevant market, thereby increasing the use of these goods downstream and 
adversely af fecting imports "7. Additional sales of domestic products can be properly understood as 
an expected effect of a subsidy, but it does not demonstrate, without more, a contingency on the 
use of domestic over imported goods.  
 
IV. CONSIDERATIONS REGARDING THE TRIMS AGREEMENT  
 
8. The TRIMS Agreement aims to eliminate conditions attaching to investments that may 
distort or restrict trade in goods in a manner that is, for example, inconsistent with Articles III or 
XI of the GATT 1994.  Although the A greement does not contain a definition of "investment 
measure", it can be expected that such a definition would include governmental measures aimed 
at promoting or regulating investment in the local economy.  The panel in Indonesia – Autos , for 
instance, f ound that measures "aimed at encouraging the development of a local manufacturing 
capability " and which "necessarily have a significant impact on investment " are investment 
measures.8 
9. Brazil does not see any a priori reason to assume that measures apply ing to individuals 
would fall outside the scope of the TRIMS Agreement. Although the Illustrative List of the TRIMS 
Agreement only makes reference to actions of enterprises, e.g. "the purchase or use by an 
enterprise of products of domestic origin or from any domestic source " and "the importation by an 
enterprise of products used in or related to its local production ", Brazil understands that the 
general concept of "investment " does not rule out an interpretation whereby both legal and natural 
persons could  be affected by an investment measure.  
10. Article 2 of the TRIMs Agreement makes it clear that certain investment measures, including 
the ones listed in the Annex, are subject to the national treatment provisions of Article III of the 
GATT 1994, including  Article III:4.  The Appellate Body has explained that a measure that is 
inconsistent with Article III:4 of the GATT 1994 would also be a TRIM that is incompatible with Article 
2.1 of the TRIMs Agreement9.  To the extent, however, that subsidies and govern ment procurement 
measures are exempted from the disciplines of Article III of the GATT 1994, such measures cannot 
be found to be "inconsistent" with Article III within the meaning of Article 2 of the TRIMs Agreement.  
 
 
 
                                                
7 US - Tax Incentives , Appellate Body Report, para. 5.16. 
8 Panel Report, Indonesia – Autos , para. 14.80.  
9 Appellate Body Report, Canada – Renewable Energy and Feed -in Tariff , para. 5.20. WT/DS510/R/Add.1  
 
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  ANNEX C -2 
INTEGRA TED EXECUTIVE SUMMAR Y OF THE ARGUMENTS O F CHINA 
I. INTRODUCTION  
1. Mr. Chair, Members of the Panel . China welcomes the opportunity to address you today .  
2. As the parties to the dispute have explained  in their submissions , it alleges  that the United 
States may be using  certain sub -federal schemes or programs pertaining to the renewable energy 
sector to provide subsidies to the relevant persons contingent upon the use of domestic goods over 
imported goods . In China .'s view, the alleged  United States .' subsidy measures  have brought  unfair 
competitive advantages to its domestic renewable energy industries , seriously distort ed the relevant 
international markets . Part of the measures at issue in the present  dispute overlaps with  the 
measure s at issue in the dispute United States -Certain Measures Related to Renewable Energy 
(DS563), which China filed the consultations request in this August .  
3. China wishes to underscore the systemic importance of the issues raised in the present  dispute  
with respect to the relevant provisions  of the GATT 1994,  the TRIMS Agreement as well as the SCM 
Agreement, which are the fundamental  rules for the multilateral  trading system, and are inter -
related because of the local content allegation of the measures at issue . China would like to express 
its views on some of the critical issues that arise in relation to the claims made by India regarding 
United States .' sub-federal schemes or programs pertaining to the renewable energy sector .  
II. ISSUES ARISING IN CO NNECTION WITH INDIA' S CLAIMS UNDER ARTIC LE III:4 OF 
THE GATT 1994  
4. It generally requires  that three elements must be demonstrate d to determine a violation of 
Article III:4 of the GATT 1994, (i) the imported and domestic products at issue are "like products "; 
(ii) the measure at issue is a "law, regulation, or requirement affecting their internal sale, offering 
for sale, purchase, transportation, distribution, or use"; and (iii) the imported products are accorded 
"less favourable " treatment than that accorded to like domestic products . 1 It appears that the United 
States makes no substantive effort to contest the first "like products " element, while focuses on 
arguing the second the third elements . China will follow  the same approach.  
5. China notes, according to the United States arguments , it has to be demonstrated that the 
measures at issue have operated to incentivize the installat ion2 or purchases of domestically made 
renewable energy products, have driven the installation3 of domestically made renewable energy 
and storage equipment, or any purchasing decisions4 with respect to domestically made renewable 
energy generation  equipmen t.  It appears that in the United States .' view, in cases where no 
evidence provided demonstrating  that potential recipients have availed themselves of the sub -
federal schemes  or programs in question, then such schemes  or programs have not operated to 
"affect" the internal use, purchase or sale of products that in favor of domestically manufactured 
products and, consequently, not accorded "less favourable " treatment to "imported products " within 
the meaning of Article III:4 of the GATT 1994.5  
6. China unde rstands that, as the Appellate Body noted in Korea -Various Measures on Beef  that 
according "treatment no less favourable " means according conditions of competition no less 
favourable to the imported product than to the like domestic product6, the "treatment no less 
favourable " emphasizes the equality  of opportunities or conditions of competition, the discipline 
                                                
 China has requested that its Oral Statement serve as Integrated Executive Summary.  
1 Appellate Body Report, Korea – Various Measures on Beef , para. 133.  
2 US’ first written submission, paras.88.  
3 Ibid. paras.90.  
4 Ibid. paras.121.  
5 Ibid. paras. 95 -98,101,and  103-104. 
6 Appellate Body Report, Korea – Various Measures on Beef , para. 13 5. WT/DS510/R/Add.1  
 
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  established h ere is to prevent the conditions of competition from being modified to the detriment of 
the imported products and in favor of the domestic products.  
7. Even though China takes no position of whether India has fulfilled its burden of proof and 
established a  prima facie case regarding the "affecting " and "less favourable " issues, China views 
that the United States intends to set up a different and unjustifiable standard of actual effects of the 
contested measure  in the marketplace, which has been rejected by the Appellate Body in US – FSC 
(Article 21.5 – EC). The Appellate Body found that the examination of whether a measure involves 
"less favourable treatment " of imported products within the meaning of Article III:4 of the GATT 
1994 need not be based on the actual effects of the contested measure in the marketplace . In this 
respect, it is well established in the previous WTO jurisprudence that the relevant inquiry for the 
purposes of establishing a violation of Article III:4 of the GATT 1994 is whether the inc entives modify 
the conditions of competition in the  relevant market to the detriment of imported products.7  
III. ISSUES ARISING IN CO NNECTION WITH INDIA. 'S CLAIMS UNDER ARTI CLE 2.1 OF 
THE TRIMS AGREEMENT  
8. A violation of Article 2.1 of the TRIM S Agreement is established by demonstrating two 
elements: (i) the existence of an investment measure related to trade in goods (i.e. a TRIM); and 
(ii) the inconsistency of that measure with Article III or Article XI of the GATT 1994 .  
9. China recalls that In Indonesia – Autos  and Canada – Renewable Energy , the aims of the 
programs in question will be useful for the analysis of the TRIMS measure, which  necessarily have 
a significant impact on investment or encourage the investment in local industries . If it is properly 
described by India, t he measures at issue in the present dispute are aimed to provide incentives for 
the greater use of renewable energy technologies/equipment manufactured locally, support existing 
local industries, and create jobs for local i ndustries and new opportunities for renewable energy 
industries to develop in the relevant U nited States.' jurisdictions.   
10. China notes that the United States does not contest the local content allegation, i.e . the 
measures at issue require use or purch ase of specified products of domestic origin . In Indonesia – 
Autos , the Panel noted that if measures are local content requirements, they would necessarily be 
"trade -related " because such requirements, by definition, always favour the use of domestic 
produ cts over imported products, and therefore affect trade .  
11. Bearing this in mind, China views that if  the measures at issue involve the use of products 
from a domestic source  and compliance with such local content requirement  in the present dispute 
is nec essary for the applicants to obtain the additional incentives , i.e. an advantage , and therefore, 
the measures at issue  would properly  fall within paragraph 1(a) of the Illustrative List and thus, 
under Article 2.2 of the TRIM S Agreement.  
IV. ISSUES ARISING IN CO NNECTION WITH INDIA. 'S CLAIMS UNDER 
ARTICLES  3.1(B) AND 3.2 OF TH E SCM AGREEMENT  
12. Article 3.1(b) of the SCM Agreement prohibits subsidies contingent  or conditioned upon the 
use of domestic over imported goods, alone or as part of oth er conditions.  China  refers to Appellate 
Body case law according to which the word "contingent " means "conditional " or "dependent for its 
existence on something else. "  The Appellate Body has explained that the word "contingent " means 
"conditional " or "dependent for its existence on something else ", contingency "in law " is 
demonstrated "on the basis of the words of the relevant legislation, regulation or other legal 
instrument. It can also be derived by necessary implication from the words actually used in the 
measure.8 In the present dispute, it appears that such contingency wordings and elements have 
been incorporated in the relevant documents under which the alleged sub -federal schemes or 
programs are in operation, which would be of use for the examinatio n by the Panel.  
13. In addition , China reiterates  that the Appellate Body stated a subsidy would be "contingent " 
upon the use of domestic over imported goods "if the use of those goods were a condition, in the 
sense of a requirement, for receiving the subs idy. It appears that India  bases its arguments on the 
                                                
7 Ibid. para. 137.  
8 Appellate Body Report, Canada – Autos , para. 123. WT/DS510/R/Add.1  
 
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  actual text of the measures and hence appears to argue that the measures in question are de jure 
contingent.  
V. CONCLUSION  
14. Mr. Chair, Members of the Panel, thank you for your attention . The delegation of China wishes 
to thank you, and the Secretariat team supporting you, for the work that has been undertaken to 
date. We look forward to your questions.  
 
 
 WT/DS510/R/Add.1  
 
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  ANNEX C-3 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF THE EUROPEA N UNION  
I. GENERAL  
1. The European Union intervenes in this case because of its systemic interest in the correct 
and consistent interpretation and application of the covered agreements and oth er relevant 
documents, and the multilateral nature of the rights and obligations contained therein, in particular 
the General Agreement on Tariffs and Trade 1994  ("GATT 1994 "), the Agreement on Trade -Related 
Investment Measures  ("TRIMs Agreement "), and the  Agreement on Subsidies and Countervailing 
Measures  ("SCM Agreement "). 
2. As regards the relationship between Article III:4 of the GATT 1994, Article 2 of the TRIMs 
Agreement and Article 3 of the SCM  Agreement, previous panels and the Appellate Body have 
acknowledged the existence of differences and overlaps. These three sets of provisions prohibit the 
use of local content requirements in certain circumstances and address discriminatory conduct.1 
Nonetheless, a finding of inconsistency with Article III.4 of the GATT 1994 does not necessarily imply 
that a measure at issue will also meet the specific conditions for being held inconsistent with Article 
2 of the TRIMs Agreement or with Article 3 of the SCM  Agreement.2 
II. CLAIMS UNDER THE GAT T 1994  
3. The United States does not dispute that the renewable energy systems and products 
originating in the relevant U.S. sub -federal jurisdictions are "like" imported systems and products. 
It does not dispute either that the measures at issue set up requirements  for the use of certain 
quantities or values of domestically produced goods for the purpose of obtaining the subsidies or 
other financial advantages instituted through the relevant schemes/programs supporting the 
renewable energy sector.  
4. According to t he Appellate Body in Dominican Republic – Import and Sale of Cigarettes, "a 
measure accords less favourable treatment to imported products if it gives domestic like products a 
competitive advantage in the market over imported like products ".3  
5. Given the  aim and nature of the measures at issue, inconsistency with Article III:4 of the 
GATT 1994 need not be based on actual market effects. It is well established in the case law that 
incentives to favour domestic products are inconsistent with Article III:4 o f the GATT 1994.  
III. CLAIMS  UNDER  THE  TRIM S AGREEMENT  
6. While most of the measures at issue in the present dispute apply also to enterprises, in 
addition to other natural or legal persons that do not necessarily pursue an economic activity, the 
requireme nt to purchase or use domestic goods imposed on all potential beneficiaries of the 
schemes/programs does not appear to be related to an "investment measure " within the meaning 
of the TRIMs Agreement. The enterprises that are eligible to apply for the incen tives granted under 
each scheme/program are not themselves active in the markets for energy generation and 
distribution nor are they producers of renewable energy systems or products. Therefore, they are in 
the same position as individuals and other non -commercial entities that may purchase such systems 
or products.  
7. The European Union suggests, without taking a firm or definite position on this matter, that 
incentives granted to enterprises as end -users of renewable energy systems or products may fall 
outside the scope of the description in Paragraph 1(a) of the Illustrative List, just like the incentives 
given to individuals for the purchase and installation of such systems in their homes.  
8. In its view, the present case potentially raises the question of whether a measure is properly 
characterized as an "investment measure " within the meaning of the TRIMs Agreement if its central 
                                                
1 Panel report Brazil – Taxation , para. 7.48, quoting the Appellate Body report in Canada – Renewable 
Energy / Canada – Feed-in Tariff Program , para. 5.5  
2 Panel report Brazil – Taxation , para. 7.49.  
3 Panel report, Dominican Republic – Import and Sale of Cigarettes, para. 93.  WT/DS510/R/Add.1  
 
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  objective is not to encourage the development of a local manufacturing capability for certain 
products, but rather to encoura ge the use of those products, while the development of a local 
manufacturing capability is an ancillary aim of that measure.  
9. The European Union also considers that for the local content requirements to have an 
appreciable effect on the development of th e sector favoured by the WTO Member, enterprises 
subject to those requirements should have an economic activity that entails a regular purchase or 
use of the locally produced goods. One -off purchases or use of those goods would not achieve the 
desired effe ct of encouraging investment in producing those inputs locally. It is therefore arguable 
that the "enterprises " referred to in paragraph 1(a) of the Illustrative List are those engaged in 
economic activities that provide a stable demand for the local produ ction in which investment is 
encouraged.  
10. Moreover, in order to fit the description of TRIMs provided for in paragraph 1(a) of the 
Illustrative List, the recipient of the advantage is necessarily the enterprise subject to the local 
content requirements . 
IV. CLAIMS UNDER THE SCM AGREEMENT  
11. In terms of the question of who needs to be a recipient of "benefit " under Article 3.1(b) 
SCMA, the European Union emphasizes that it considers that it is sufficient in this context that the 
existence of benefit is determined for a (i.e. any) recipient. Article 1 SCMA provides that a subsidy 
is deemed to exist if there is a financial contribution and a benefit is thereby conferred : it does not 
specify to whom the benefit must be conferred nor require that the identit y of the beneficiary or 
beneficiaries be established. A benefit simply has to be conferred on someone.  
12. The existence of benefit for final customers does not appear to be contested in the present 
case. Therefore, whether or not the benefit is then furth er passed -through from the final 
purchaser/customer to other recipients (e.g. to producers of energy systems) would not seem to be 
determinative for the outcome of the present case.  
13. Regarding the issue of "contingency ", the European Union considers tha t the SCM 
Agreement is in principle neutral as to whether measures are "directed " to consumers or to non -
consumers, as long as the conditions under Article 1 and Article 3.1(b) are fulfilled, notably the 
requirements of "subsidy " and "contingency ". The Eur opean Union takes the position that a subsidy 
– if the conditions of Article 1 are fulfilled - can be "contingent " upon the use of domestic over 
imported goods even if the subsidy is provided to consumers and irrespective of whether or not 
consumers are th e "users " of domestic over imported goods. The Appellate Body found that "the 
ordinary connotation of 'contingent' is 'conditional' or 'dependent for its existence on something else . 
This conditionality appears to be present since the consumer (purchaser) will only obtain the subsidy 
if it can be shown that the purchased item (e.g. the energy system) was produced using local over 
imported goods. Hence the use of the local components (b y the manufacturer) is an explicit 
requirement for the consumer/purchaser to receive the subsidy. This condition appears to be stated 
in the respective US legal instruments and hence would appear to constitute a case of de iure  
contingency.  
14. Regarding t he interpretation of the term "use" in Article 3.1(b), the European Union notes 
that previous statements by the Appellate Body referred to "use" in the context of manufacturing 
and hence strongly indicate that the "use" of the domestic good refers to produ ction or 
manufacturing activities and not, e.g. to the activity of purchasing a product. The European Union 
considers that the term "use" must be read in conjunction with the phrase "of domestic over imported 
goods ". When reading the phrase together it bec omes apparent that it is only a manufacturer that 
can "use domestic over imported goods. " A purchaser cannot "use a domestic product over an 
imported product. " That phrase simply makes no sense in the context of a purchase.  
15. Regarding the distinction b etween the benefit of a subsidy and other trade effects (e.g. 
additional sales by component producers), the European Union recalls that the Appellate Body found, 
inter alia , that a determination of "benefit" under Article 1.1(b) SCMA seeks to identify whet her the 
financial contribution  has made "the recipient 'better off' than it would otherwise have been, absent 
that contribution ".4 In addition, Article 1.1(b) SCMA states that a benefit is "thereby " conferred. This 
also seems to refer to the financial cont ribution, otherwise the text would simply read "is conferred ". 
                                                
4 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , paras. 635 – 636, 662, and 690.  WT/DS510/R/Add.1  
 
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  16. Benefit in the present case is the benefit that is conferred to customers (at least initially) 
through the financial contributions at issue, in particular direct transfers of funds and reve nue 
foregone. The additional sales by local component producers are not linked to the financial 
contribution of direct transfer of funds or revenue foregone. Taking into account trade effects other 
than the actual benefit - such as "additional sales " - would also risk to unduly overstate the benefit 
amount. Benefit can be distinguished from other trade effects through a method of "exclusion ". The 
Panel may first define the benefit in relation to the respective financial contribution at issue. 
Everything tha t is not covered by the benefit so identified (e.g. additional sales) will constitute a 
"trade effect " that does not fall within Article 1.1(b) SCMA.  
 
 
 
 
 
 
 
 WT/DS510/R/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF JAPAN  
I. LEGAL STANDARD UNDER ARTIC LE III:4 OF THE GATT  1994  
1. Japan would like to comment on two of the requirements under Article III:4 of the General 
Agreement on Tariffs and Trade 1994 ("GATT 1994 ") that are discussed in this case, namely: (a) 
whether the measure at  issue is a "law[], regulation[]  and requirement[] affecting [the] internal 
sale, offering for sale, purchase, transportation, distribution or use " of imported products; and (b) 
whether the imported products are accorded "less favourable " treatment than th at accorded to like 
domestic products.  
A. "Laws, Regulations and Requirements Affecting . . . Internal Sale, Offering 
for Sale, Purchase, Transportation, Distribution or Use "  
2. With regard to the requirement under Article III:4 of the GATT 1994 that the measure at issue 
must constitute a "law[], regulation[]  and requirement[] affecting [the] internal sale, offering for 
sale, purchase, transportation, distribution or use " of imported products, Japan understands the 
United States to emphasize that the term "affecting " implies that a measure must actually alter 
market conditions for a violation to occur.1 
3. However, the term "affecting " has been interpreted to mean having "'an effect on ', which 
indicates a broad scope of application. "2 According to the panel  in China – Publications and 
Audiovisual Products , "[t]he word 'affecting ' covers not only measures which directly regulate or 
govern the sale of domestic and imported like products, but also measures which create incentives 
or disincentives with respect t o the sale, offering for sale, purchase, and use of an imported product 
'affect ' those activities. "3 
4. The panel in Canada – Autos  also noted that "[t]he word 'affecting ' in Article III:4 of the GATT 
has been interpreted to cover not only laws and regulations which directly govern the conditions of 
sale or purchase but also any laws or regulations which might  adversely modify the conditions of 
competition between domestic and imported products. "4 The panel therefore found "no merit " in 
Canada 's argument that its domestic content requirements were "so low " that they "do not in 
practice 'affect '" the market conditions.5  
5. Thus, the Panel should interpret the term "affecting " broadly, as encompassing anything that 
"has an effect on " or "might " affect any aspect of the sale, purchase, transportation, distribution or 
use of the products at issue. Whether a measure actually succeeds  in "affecting " the "sale, purchase, 
transporta tion, distribution or use " of the product at issue is irrelevant. Such an inquiry would be at 
odds with the general principle that a showing of trade effects is not necessary to establish a violation 
of Article III of the GATT 1994.6 
B. "Treatment No Less Favourable " 
6. As to the requirement of "less favourable treatment " in the Article III:4 analysis, the United 
States argues that a measure that does not "affect " the "use" of a product necessarily does not 
"modify the conditions of competition ", and thus fails to satisfy the requirement.7 In conjunction 
                                                
1 For example, United States’ first written submission, paras. 84, 87 -88. 
2 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 209 (quoting Appellate Body Report, EC – 
Bananas III , para. 220 that interpreted the meaning of “affecting” similarly to its use in Article I:1 of the 
General Agreeme nt on Trade in Services (“GATS”)) (emphasis original).  
3 Panel Report, China – Publications and Audiovisual Products , para. 7.1450.  
4 Panel Report, Canada – Autos , para. 10.80 (citing Panel Report, Italian Agricultural Machinery , para.  
12) (emphasis added) . 
5 Panel Report, Canada – Autos , para. 10.83.  
6 Appellate Body Report, Japan – Alcoholic Beverages II , p. 16; Appellate Body Report, Canada – 
Periodicals , p. 18.  
7 For example, United States’ first written submission, paras. 87 -88, 92 and 96.  WT/DS510/R/Add.1  
 
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  with its argument regarding the term "affecting ", the United States basically argues that a measure 
must, in fact, alter market conditions for a violation of the "less favourable treatment " standard to  
occur as well.  
7. With regard to the Appellate Body 's finding that "[w]hether or not imported products are 
treated 'less favourably ' than like domestic products should be assessed […] by examining whether 
a measure modifies the conditions of competition  in the relevant market to the detriment of imported 
products ",8 the Appellate Body, in Dominican Republic – Import and Sale of Cigarettes , clarified that 
a measure accords "less favourable treatment " when "it gives domestic like products a competitive 
advan tage in the market over imported like products. "9 Provision of "equality of competitive 
conditions for imported products in relation to domestic products " in internal markets is also the 
general purpose of Article III.10 
8. Japan considers that an examinat ion of whether a measure accords equality of competitive 
conditions, and thus whether it accords imported products "no less favourable " treatment, should 
be based on the overall structure and design of the measure itself. In this regard, Japan again notes 
that disparate trade effects are neither necessary for nor relevant to a finding of inconsistency with 
Article III:4.11 
9. Such an interpretive standard accords with jurisprudence. For example, the Appellate Body in 
Thailand – Cigarettes (Philippines)  explained that analysis under Article III:4 should include 
"consideration of the design, structure, and expected operation of the measure at issue. "12 The 
Appellate Body in US – FSC (Article 21.5 – EC) also noted that an analysis under Article III:4 should 
be "grounded in close scrutiny of the 'fundamental thrust and effect of the measure itself '", and 
"need not be based on the actual effects  of the contested measure in the marketplace. "13 Similarly, 
the Appellate Body explained further in Japan – Alcoholic Beverages II and Korea – Alcoholic 
Beverages  that "it is irrelevant  [to Article III inconsistency] that the 'trade effects ' of the tax 
differential between imported and domestic products , as reflected in the volumes of imports, are 
insignificant or even non -existent. "14 And as the Panel in China – Publications and Audiovisual 
Products  phrased it: "the phrase 'treatment no less favourable ' is not qualified by a de minimis 
standard. "15 
10. Thus, it is Japan 's view that it is unnecessary for a complaining Member to identify or produce 
actual data to substantiate a prima facie  case that a measure modifies the conditions of competition 
to the detriment of imported products, thereby providing "less favourable " treatment under Article 
III:4 of the GATT 1994. Applying the same logic, it is also Japan 's view that data produced by a 
responding Member purporting to show that the measure did not modify the competitive conditions 
of the market or that m arket participants did not avail themselves of the uncompetitive market 
conditions created by the measure cannot rebut a claim of "less favourable " treatment.  
II. RELATIONSHIP BET WEEN THE REQUEST FOR  CONSULTATION AND TH E PANEL 'S 
TERMS OF REFERENCE  
11. The United States requested that the Panel make a preliminary ruling on some of the measures 
at issue as claimed by India. Japan would like to comment specifically on the United States ' request 
for a preliminary ruling that the Minnesota "Solar Thermal Rebate " and "Solar PV Rebate " are outside 
the Panel 's terms of reference.  
12. Japan understands the United States ' position to be that these two measures fall outside the 
Panel 's terms of reference because India did not identify the specific statutory subdivisions 
(MINN.STAT.216.416 .subd.1 -3 and MINN.STAT.116C.7791. subd.3 ) describing the measures in its 
                                                
8 Appellate Body Report, Korea – Various Measures on Beef , para. 137  (emphasis original).  
9 Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 93.  
10 Appellate Body Report, Japan – Alcoholic Beverages II , p. 16.  
11 Appellate Body Report, Japan – Alcoholic Beverages II , p. 16; Appellate Body Report, Canada – 
Periodicals , p. 18.  
12 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 134.  
13 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215  (emphasis original).  
14 Appellate Body Report, Korea – Alcoholic Beverages , para. 119 (quoting Appellate Body Report, Japan 
– Alcoholic Beverages II , p. 16) (emphasis added).  
15 Panel Report, China – Publications and Audiovisual Products , para. 7.1537 (emphasis orig inal). WT/DS510/R/Add.1  
 
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  request for consultations.16 However, Japan notes that India appears to have referenced the 
applicable statutory subdivisions (MINN.STAT.216.416 and MIN N.STAT.116C.7791) as to both 
measures in its request for the establishment of a panel.17 
13. Japan focuses its remarks on the relevant text of Articles 4 and 6 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes ("DSU") as wel l as the standard of 
review set out by the Appellate Body for examining differences in requests for consultations and 
requests for the establishment of a panel.  
A. Textual Analysis of the DSU  
14. Japan considers that the text of the DSU contemplates that a  panel request will be more 
specific with respect to the identification of the measures at issue than a consultation request. Article 
4.4 of the DSU provides that the consultation request must "give the reasons for the request, 
including identification of the measures at issue and an indication of the legal basis for the 
complaint. " The relevant requirement with respect to requests for the establishment of a panel is 
that the request must "identify the specific  measures at issue and provide a brief summary of the 
legal basis of the complaint sufficient to present the problem clearly. "18 
15. In Argentina – Import Measures , the Appellate Body explained the textual difference between 
identification of "the measures " in Article 4.4 and "the specific measures " in Article 6.2, noting that 
"greater specificity is required in a panel request than in a consultations request ."19 The Appellate 
Body also found in this case that the consultations process is an opportunity to "define and delimit 
the scope of the dispute " and to "refine the contours of the dispute to be subsequently set out in the 
panel request ."20 
16. Japan therefore encourages the Panel to review India 's consultation request and its panel 
request in light of the different purposes of the two requests withi n the dispute settlement process, 
as noted by the Appellate Body.  
B. Unnecessity of "Precise and Exact Identity "  
17. Japan further notes that the Appellate Body has found that a "precise and exact identity " 
between the measures in the request for consultations and those in the request for establishment 
of a panel is not required. For example, the Appellate Body in Brazil – Aircraft explained as follows:  
In our view, Articles 4 and 6 of the DSU, as well as pa ragraphs 1 to 4 of Article 4 of the 
SCM Agreement, set forth a process by which a complaining party must request 
consultations, and consultations must be held, before a matter may be referred to the 
DSB for the establishment of a panel. Under Article 4.3 o f the SCM Agreement, moreover, 
the purpose of consultations is "to clarify the facts of the situation and to arrive at a 
mutually agreed solution. "  
We do not believe, however, that Articles 4 and 6 of the DSU, or paragraphs 1 to 4 of 
Article 4 of the SCM Agreement, require a precise and exact identity between the specific 
measures that were the subject of consultations and the specific measures identified in 
the request for the establishment of a panel.21 
18. Japan notes that the United States relies on th e first sentence of the above quoted passage 
for its argument that India must have identified the "Solar Thermal Rebate " and the "Solar PV 
Rebate " in its request for consultations for the measures to be included in the panel 's terms of 
reference. However, the Appellate Body stressed in the language immediately following that a 
"precise and exact identity " is not required between the request for consultations and the panel 
request. In Argentina – Import Measures , the Appellate Body concluded, after having re viewed its 
prior case law, that "there is no need for a 'precise and exact identity ' between the measures 
                                                
16 India’s request for consultations, WT/DS510/1.  
17 India’s request for the establishment of a panel, WT/DS510/2.  
18 Article 6.2  of the DSU  (emphasis added).  
19 Appellate Body Report, Argentina – Import Measures , para. 5.9 . 
20 Appellate Body Report, Argentina – Import Measures , para. 5.10.  
21 Appellate Body Report, Brazil – Aircraft , paras. 131 -132 (emphasis added).  WT/DS510/R/Add.1  
 
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  identified in the consultations request and the specific measure identified in the panel request, 
provided that the latter does not expand the scope o f the dispute or change its essence. "22 
19. The Panel should therefore carefully examine whether these two measures on which the United 
States requests preliminary rulings are in fact outside scope of the terms of reference, accounting 
for the above -mentio ned textual analysis and explanation as expressed by the Appellate Body.  
 
 
                                                
22 Appellate Body Report, Argentina – Import Measures , para. 5.16. WT/DS510/R/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF NORWAY  
I.  THE MEASURES AT ISSU E MUST BE "LAWS, REGULATIONS [O R] REQUIREMENTS 
AFFECTING  THEIR INTERNAL SALE, OFFERING FOR S ALE, PURCHASE, 
TRANSPORTATION, DIST RIBUTION OR USE ". 
 
1. The term "affecting " indicates a broad scope of application.1 Also past panels and the Appellate 
Body have understood the term "affecting " in Article III:4 of the GATT 1994 to have a "'broad scope 
of application ' in the specific context of the impact of domestic content requirements on private 
operators ' choices and  incentives ".2  
 
2. Panels have repeatedly found that measures covered by Article III:4 of the GATT 1994 include 
"conditions that an enterprise accepts in order to receive an advantage ", and the Appellate Body has 
confirmed that measures that "create an in centive " for use of domestic over imported goods can be 
considered to "affect " the internal sale, purchase, or use of those goods.3 
 
3. Along the same lines, the panel in Canada – Autos maintained that "[t]he word 'affecting ' in 
Article III:4 of the GATT h as been interpreted to cover not only laws and regulations which directly 
govern the conditions of sale or purchase but also any laws or regulations which might  adversely 
modify the conditions of competition between domestic and imported products ".4  
 
4. The panel in China – Publications and Audiovisual Products  stated, moreover, that "the word 
'affecting ' covers not only measures which directly regulate or govern the sale of domestic and 
imported like products, but also measures which create incentives or disincentives with respect to 
the sale, offering for sale, purchase, and use of an imported product [that] 'affect ' those activities ".5 
 
5. WTO panels and the Appellate Body have, consequently, consistently opted for wide 
interpretations of the term "affecting". Under this term, measures that not only actually, but also 
potentially  and/or indirectly  affect trade have been subject to judicial review. It is well established 
in WTO jurisprudence that incentives to favour domestic products are inconsistent with  Article III:4 
of the GATT 1994.  
 
6. A measure can thus be considered to be a measure affecting, i.e. having an effect on, the 
internal sale or use of imported products even if it is not shown that under the current market 
circumstances  the measure has ha d an impact on the decisions of private parties to buy imported 
products. It can therefore not be required that a measure actually succeed in "affecting " the "sale, 
purchase, transportation, distribution, or use " of the product at issue, for a measure to be 
inconsistent with Article III:4.  
 
7. Given the aim and nature of the measures at issue, inconsistency with Article III:4 of the 
GATT 1994 need not be based on actual market effect(s). The Panel should, therefo re, interpret the 
term "affecting " broadly, as encompassing any measure that "has an effect on " or "might " affect 
any aspect of the sale, purchase, transportation, distribution, or use of the products at issue. 
Whether an actual effect has indeed materiali sed from a measure may, to varying degrees, also 
depend on other, alternative and independent circumstances and conditions influencing the market.  
 
II.  THE MEASURES AT ISSU E MUST ACCORD IMPORT ED PRODUCTS TREATMENT NO 
LESS FAVOURABLE  THAN THAT ACCORDED TO LIKE DOMESTIC PRODUC TS.  
 
8. Is it necessary to assess the measure 's "implications in the marketplace " to determine whether 
the measure accords "less favourable " treatment?  
                                                
1 Panel Report, Canada – Autos , para. 10.80 (e mphasis added).  
2 Panel Report, India Solar Cells , para. 7.87. 
3 Panel Report, India Solar Cells , para. 7.87.  
4 Panel Report, Canada – Autos , para. 10.80 (citing GATT Panel Report, Italy – Agricultural Machinery , 
para. 12) (emphasis added).  
5 Panel Report, China – Publications and Audiovisual Products , para. 7.1450.  WT/DS510/R/Add.1  
 
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9. In US – Section 337 Tariff Act  the GATT panel interpreted "treatment no less favourable " as 
requiring "effective equality of opportunities "6. This interpretation has been confirmed consistently 
by WTO panels and the Appellate Body.  
 
10. The Appellate Body found in Dominican Republic – Import and Sale of Cigarettes  that a 
measure accords "less favourable " treatment when it "gives domestic like products a competitive 
advantage in the market over imported like products ".7  
 
11. In US – FSC (Article 21.5 – EC) the Appellate Body elaborated  further on this standard by 
noting that an analysis under Article III:4 of the GATT 1994 "must be grounded in close scrutiny of 
the 'fundamental thrust and effect of the measure itself '. This examination cannot rest on simple 
assertion, but must be founded on a careful analysis of the contested measure and of its implications 
in the marketplace. At the same time, however, the examination need not be based on the actual 
effects  of the con tested measure in the marketplace ".8  
 
12. The Appellate Body explained, more specifically, in Japan – Alcoholic Beverages II and Korea  
Alcoholic Beverages  that "it is irrelevant [to Article III inconsistency] that the 'trade effects ' of the 
tax differenti al between imported and domestic products, as reflected in the volumes of imports, are 
insignificant or even non -existent ".9 
 
13. Following the same line of reasoning, the Appellate Body in EC – Bananas III  outlawed an EC 
scheme that provided traders with an incentive to trade EC goods at the expense of imported like 
products, even in the absence of any tangible evidence suggesting that there was a quantified trade 
impact stemming from this measure.10 
 
14. Therefore, Norway considers it unnecessary for a co mplaining Member to identify or produce 
actual data to substantiate a prima facie  case that a measure modifies the conditions to the 
detriment of imported products, thereby providing "less favourable " treatment under Article III:4 of 
the GATT 1994.  
 
15. Applying the same logic, Norway concurs with the view of other third parties, that data 
produced by a responding Member purporting to show that the measure did not modify the 
competitive conditions of the market, or that market participants did not avail th emselves of the 
uncompetitive market conditions created by the measure, cannot rebut a claim of "less favourable " 
treatment.  
 
 
 
 
_______________  
 
                                                
6 GATT Panel Report, US – Section 337 Tariff Act , para. 5.11.  
7 Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 93.  
8 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215 (original emphasis).  
9 Appellate Body Report, Korea – Alcoholic Beverages , para. 119 (quoting Appellate Body Report, Japan 
– Alcoholic Beverages II , p. 16 (emphasis added).  
10 Appellate Body Report, EC – Bananas , paras 213 -214. WT/DS510/R/Add.1  
 
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  ANNEX  D 
 
PRELIMINARY RULING  OF THE PANEL  
Contents  Page  
Annex D -1 Preliminary Ruling of the Panel (27 September 2018)  63 
 WT/DS510/R/Add.1  
 
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  ANNEX D -1 
 
US – RENEWABLE ENERG Y 
(D510)  
 
PRELIMINARY RULING O F THE PANEL  
 
 
 
 
 
 
This preliminary ruling was issued to the parties and third parties as a 
confidential document on 27 September 2018. Subject to any editorial 
corrections, it forms an integral part of the Panel's Report in this 
dispute.  
 
  WT/DS510/R/Add.1  
 
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  Table of Contents  
1   INTRODUCTION  ................................ ................................ ...........................  65 
2   THE UNITED STATE S' REQUESTS FOR PREL IMINARY RULINGS  ....................  65 
3   THE LAMC ADDER A ND THE MASSACHUSETTS  MANUFACTURER ADDER  ........  66 
3.1   The adders in question  ................................ ................................ .........  66 
3.2   Main arguments of the parties  ................................ ...............................  66 
3.2.1   General arguments  ................................ ................................ ... 66 
3.2.2   LAMC Adder  ................................ ................................ .............  67 
3.2.3   Massachusetts Manufacturer Adder  ................................ .............  68 
3.3   Main arguments of a third party ................................ .............................  69 
3.4   Analysis by the Panel  ................................ ................................ ...........  70 
3.4.1   The question before us  ................................ ................................ ...... 70 
3.4.2   The general rule regarding measures included in a panel's terms of 
reference  ................................ ................................ ...........................  72 
3.4.3   Exceptions to the general rule recognised by the Appellate Body  .... 73 
3.4.4   Additional arguments by India  ................................ ...................  74 
3.4.4.1    Whether benefits continue to be provided or to exist  .........  74 
3.4.4.2    Whether there is a ris k of reintroduction  ..........................  75 
3.4.5   Conclusion on the LAMC Adder and the Massachusetts Manufacturer 
Adder  ................................ ................................ ................................  76 
4   THE SOLAR THERMA L REBATE AND THE SOL AR PV REBATE  ..........................  77 
4.1   The programs in question  ................................ ................................ ..... 77 
4.2   Main arguments of the parties  ................................ ...............................  77 
4.3   Main arguments of the third parties  ................................ .......................  78 
4.4   Analysis by the Panel  ................................ ................................ ...........  79 
4.4.1   The question before us ................................ ..............................  79 
4.4.2   Legal framework  ................................ ................................ ...... 79 
4.4.3   Whether the Solar Thermal and Solar PV rebates are identified in 
India's consultations request  ................................ ................................  81 
4.4.3.1    Solar Thermal reba te ................................ ....................  82 
4.4.3.2    Solar PV rebate  ................................ ............................  83 
4.4.4   The "general framework" of India's consultations request  ..............  84 
4.4.5   Conclusion on the Solar Thermal and Solar PV rebates  ..................  84 
 
  WT/DS510/R/Add.1  
 
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  1  INTRODUCTION  
1.1.  On 7  August  2018, the United States filed its first written submission. The submission 
contained requests for preliminary rulings on jurisdictional issues concerning specific measures 
challenged by India.  
1.2.  On 9 August  2018, the Panel invited India to respond to the United States' preliminary ruling 
requests, and the third parties to comment on the same requests as part of their third party 
submissions.  
1.3.  Accordingly, on 16 August 2018, India responded to United States' preliminary ruling requests, 
and on 21  August  2018 the Panel received comments from the European Union and Japan. 
Finally,  on 23 August  2018 the Panel received additional comments from the parties.  
2  THE UNITED STATES ' REQUESTS FOR PRELI MINARY RULINGS  
2.1.  The United States requests that the Panel make p reliminary rulings to exclude the following 
from its terms of reference1: 
a. the Los Angeles Manufacturing Credit (LAMC Adder) provided for under the Los Angeles 
Solar Incentive Program (SIP);  
b. the Massachusetts Manufacturer Adder provided for under the Massachusetts 
Commonwealth Solar Hot Water Residential Program and the Massachusetts 
Commonwealth Solar Hot Water Commercial Program (jointly CSHWP);  
c. the Solar Thermal rebate under the Minnesota Solar Incentive Program (MSIP); and  
d. the Solar PV rebat e under the MSIP.  
2.2.  The United States requests the Panel to find that these adders and rebates as challenged by 
India fall outside its terms of reference.2 The United States claims that the  LAMC Adder and the 
Massachusetts Manufacturer Adder were no lo nger in force when the Panel was established on 
21 March  2017.3 As for the Solar Thermal rebate and the Solar PV rebate, the United States contends 
that these were not included in India's request for consultations, and were not the subject of 
consultations  between the parties.4 
2.3.  Given the similarity of arguments and legal issues involved in the preliminary issues concerning 
the LAMC Adder and the Massachusetts Manufacturer Adder, the  Panel will address these jointly.5 
Likewise, the Panel will address t he Solar Thermal and Solar PV rebates jointly, in light of the closely 
related arguments and legal issues involved in the relevant preliminary ruling requests.6 
 
                                                
1 United States' first written submission, paras. 40 -74. 
2 United States' first written submission, para. 42.  
3 United States' first written submission, para. 40.  
4 United States' first written submission, para. 41.  
5 In fact, the parties have also p resented their arguments jointly in their relevant submissions. See 
United  States' first written submission, paras. 44 -65; and India's response to the United States' request for a 
preliminary ruling, paras. 4 -20. 
6 In fact, the parties have also presented their arguments jointly in their relevant submissions. See 
United  States' first written submission, paras. 66 -74; and India's response to the United States' request for a 
preliminary ruling, paras. 21 -41. WT/DS510/R/Add.1  
 
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  3  THE LAMC ADDER AN D THE MASSACHUSETTS MANUFACTURER ADDER  
3.1  The adders in question  
3.1.  The LAMC Adder7 consists of a payment granted under the Los Angeles SIP to eligible recipients, 
provided that a minimum of 50% of the components of the finished solar photovoltaic (PV) modules 
and/or the qualifying equipment are manufactured and/or assemble d within the city of Los  Angeles, 
California. The LAMC Adder was contained in the Net Energy Metering and Solar Photovoltaic 
Incentive Program Guidelines of 4  December 2015 (2015 SIP Guidelines) issued by the Los Angeles 
Department of Water and Power (LADW P).8 The LADWP issued new SIP Guidelines effective as from 
1 January 2017.9 The parties concur that these 2017 SIP Guidelines do not contain the LAMC  Adder.10 
3.2.  The Massachusetts Manufacturer Adder11 was granted by the State of Massachusetts provided 
that a system uses eligible Massachusetts manufactured components. The adder was part of the two 
CSHWP programs administered by the Massachusetts Clean Energy Centre (MassCEC). Under these 
programs, rebates are offered to offset the cost of installing solar  hot water systems. These rebates 
act as refunds and are not per se  challenged by India. The processes of applying for rebates, 
the eligibility requirements and the rebate levels are regulated in two manuals issued on 25  February 
2016, one for each program .12 The methods for calculating the total amount of rebates under these 
manuals include certain adders, among them the Massachusetts Manufacturer Adder challenged by 
India.  
3.3.  MassCEC issued new program manuals on 5 October 2016, which expressly discont inued the 
Massachusetts Manufacturer Adder. These manuals included the following notice: "As of 
December  15, 2016, new applications will not be eligible to receive the Massachusetts manufactured 
rebate adder".13 The most recent versions of both program man uals were issued on 1 May 2018. 
These  state that an applicant shall provide the relevant photographs of eligible system components 
manufactured in Massachusetts only "if applicable, and if the application was submitted prior to 
December  15, 2016".14 
3.2  Main arguments of the parties  
3.2.1   General arguments  
3.4.  The United States requests the Panel to find that the LAMC  Adder and the Massachusetts 
Manufacturer Adder fall outside the Panel's terms of reference because they were no longer in force 
when the Panel was established on 21 March 2017,  and, accordingly, to reject India's request for 
findings on them .15 The United  States recalls that, according to the Appellate Body, t he term "specific 
measures at issue" in Article 6.2 of the DSU suggests that, as a general rule, the measures included 
in a panel's terms of reference must be measures that were in existence at the ti me of the panel's 
establishment. For the United states, measures not "in existence" for purposes of Article 6.2 include 
                                                
7 According to India, the measure is implemented th rough the California Public Utilities Code, Division 1, 
Part 1, Chapter 2.3, Article 6 (Sections 360 – 380.5); and the 2015 SIP Guidelines. (India's first written 
submission, para. 251).  
8 LADWP, Net Energy Metering and Solar Photovoltaic Incentive Program  Guidelines, 4 December 2015 
(Exhibit IND –26). 
9 LADWP, Solar Incentive Program Guidelines, 1 January 2017 (Exhibit US -5). 
10 India's first written submission, para. 252. United States' first written submission, para. 49.  
11 According to India, the measure  is implemented through the Massachusetts Clean Energy Centre, 
Commercial -Scale Solar Hot Water Program Manual, February 25, 2016, and the Massachusetts Clean Energy 
Centre, Residential -Scale Solar Hot Water Program Manual, February 25, 2016. (India's firs t written 
submission, para. 1097).  
12 Massachusetts Clean Energy Center , Residential - and Small -Scale Solar Hot Water Program Manual, 
February 25, 2016 (Exhibit IND -73); and Massachusetts Clean Energy Center, Commercial -Scale Solar Hot 
Water Program Manual , February 25, 2016  (Exhibit IND -74). 
13 Massachusetts Clean Energy Center, Residential - and Small -Scale Solar Hot Water Program Manual, 
October 5, 2016, p.1 (Exhibit US –17); Massachusetts Clean Energy Center, Commercial -Scale Solar Hot Water 
Program Manual, October 5, 2016,  p. 1 (Exhibit US -18). 
14 Massachusetts Clean Energy Center, Residential - and Small -Scale Solar Hot Water Program Manual, 
May1, 2018, p.5 (Exhibit US –15); Massachusetts Clean Energy Center, Commercial -Scale Solar Hot Water 
Program Manual, May1, 2018 , p. 5 (Exhibit US -16). 
15 United States' first written submission, paras. 40, 58 and 65.  WT/DS510/R/Add.1  
 
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  measures that were previously in effect but whose legislative basis expired before the panel was 
established.16 
3.5.  India requests the Panel to reject the United States' requests for preliminary rulings and find 
that the Panel has jurisdiction to issue findings with respect to the LAMC Adder and the 
Massachusetts Manufacturer Adder.17 According to India, the Appel late Body has recognised that 
there are at least two exceptions to the general rule that measures included in a panel's terms of 
reference must be in existence at the time of its establishment, which may apply depending on facts 
and circumstances of each c ase.18 India noted that in prior disputes, some panels have decided to 
rule on "expired measures" based on a risk of their being reintroduced at some later point in time.19 
India argues that the following principles emerge from prior panel and Appellate Bo dy reports: 
(i) the fact that a measure has expired is not dispositive of the preliminary question of whether a 
panel can address claims in respect of such measure20; (ii) the key principle which must guide a 
panel in exercising its discretion with respect  to an expired measure is that a complaining party must 
not be forced to face a "moving target"21; (iii) a panel may issue findings with respect to an expired 
measure without showing that such measure continued to produce effects impairing the benefits to 
the complaining party22; (iv) there could be more exceptions to the general rule that a panel's terms 
of reference are limited to measures that were "in existence" at the time the panel was established23; 
and (v) the ease with which an expired measure may be re-introduced is a factor which panels have 
taken into account while exercising discretion to rule on an expired measure.24 India adds that the 
fact that a respondent asserts the WTO consistency of an expired measure indicates that it would 
face no diff iculty in reintroducing it.25 
3.6.  The United States submits that the past cases mentioned by India are not on point because 
they dealt with measures that were in force when the respective panels were established and expired 
only subsequently, in the cour se of the panel proceedings.26 The United  States disagrees with India 
that the existence of a risk of reintroduction would justify inclusion of the measures in the panel's 
terms of reference. The United States considers that India's approach lacks evidenti ary support, 
would give panels essentially unbounded authority to examine long -expired measures, and would 
open the way for legal challenges on a purely speculative basis even where there is no evidence that 
the Member is likely to reintroduce them.27  
3.2.2  LAMC Adder  
3.7.   According to the United States, the LAMC Adder was part of the SIP, but was terminated in 
December 2016 by the Los Angeles Board of Water and Power Commissioners with the issuance of 
the 2017 Guidelines, which superseded the 2015 SIP Guidelines in their entirety from 1  January 
2017. The United States notes that the 2017 SIP Guidelines, in accordance with which the LADWP 
administers the SIP, do not provide for or refer to the LMAC Adder. Further, the United States notes 
that on 6 Decemb er 2016, the Los Angeles Board of Water and Power Commissioners expressly 
                                                
16 United States' first written submission, para. 47.  
17 India's response to the United States' request for a preliminary ruling, para. 42.  
18 India's response to the United States' request for a preliminary ruling, para. 6 (referencing 
Appellate  Body Report, US – Certain EC Products , para. 81).  
19 India's response to the United States' request for a preliminary ruling, paras. 7 -9 (referencing Panel 
Report, US – Poultry (China) , paras. 7.51 -7.56;  Panel Report, Chile – Price Band System , paras. 7.112 -7.115; 
and Panel Report, India – Additional Import Duties , para. 4.18).  
20 India's response to the United States' request for a preliminary ruling, para. 10(i) (referencing 
Appellate Body Report, US – Upland Cotton , para. 272).  
21 India's response to the United States' request for a preliminary ruling, para. 10(ii) (referencing 
Appellate Body Report, Chile – Price Band System , para. 144).  
22 India's response to the United States' request for a prelimina ry ruling, para. 10(iii) (referencing 
Appellate Body Report, US – Certain EC Products , para. 81; and Panel Report, Chile – Price Band System , 
paras. 7.112 -7.115).  
23 India's response to the United States' request for a preliminary ruling, para. 10(iv) (ref erencing 
Appellate Body in EC – Selected Customs Matters , para. 81).  
24 India's response to the United States' request for a preliminary ruling, para. 10(v).  
25 India's response to the United States' request for a preliminary ruling, para. 10(v) (referenci ng 
Panel  Report, India – Additional Import Duties , paras. 7.69 -7.70).  
26 United States' comments on India's response to the United States' request for preliminary rulings, 
paras. 8 -9. 
27 United States' comments on India's response to the United States' req uest for preliminary rulings, 
paras. 10 -11. WT/DS510/R/Add.1  
 
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  terminated certain incentive adders that were previously available under the SIP, including the LAMC 
Adder.28 A Board letter accompanying the proposed resolution states that "the Los  Angeles 
Manufacturing Credit will be removed" as "[t]here have been no requests for this manufacturing 
credit for over three years".29 
3.8.  India acknowledges that the 2017 SIP Guidelines issued by LADWP do not contain any provision 
with respect to the L AMC Adder30, but considers that the LAMC Adder has been removed only in view 
of the consultations between India and the United States.31 In any event, it is not clear to India if 
the 2015 Guidelines have been superseded by the new guidelines, and even if s uperseded, India 
considers it likely that the LAMC Adder benefits under those guidelines continue to be provided.32 
3.9.  Alternatively, India notes that there is a risk that the LAMC Adder or similar measures may be 
reintroduced.33 India argues that even if the LAMC Adder under the 2015 SIP Guidelines was 
abolished through the 2017 Guidelines, the legislative basis of the SIP (i.e. Senate Bill 134) has not 
expired. According to India, as Senate Bill 1, which amends the Public Resources Code and the Public 
Utilities Code, gives legislative authority to issue program guidelines, the LAMC Adder can be easily 
re-introduced by amending the existing SIP guidelines. India notes that the fact that the LADWP 
periodically reviews, modifies, and amends its SIP guideli nes is also evident from a California LADWP 
board letter submitted by the United States, which records the numerous reviews and modifications 
to the SIP guidelines since 2000.35 
3.10.   Further, India notes that the United States disputes the WTO -inconsiste ncy of the LAMC 
Adder, and observes that prior panels facing a similar issue considered the possible repetition of a 
WTO-inconsistent measure or the possibility of reinstating the status quo ante  as a key factor in 
deciding whether to issue findings on an expired measure. Consequently, India submits that, given 
the ease with which the LADWP could re -introduce the LAMC Adder and the fact that the 
United  States asserts the LAMC Adder is WTO -consistent, the Panel must issue findings, if not a 
recommendation to  the DSB, with respect to the LAMC Adder in order to secure a positive resolution 
to the dispute.36 
3.11.   According to the United States, India's assertion that the LADWP continues to provide benefits 
under the LMAC Adder are unsupported and, indeed, refu ted by the facts. Likewise, the United States 
considers that India's assertions regarding the alleged risk that the LMAC Adder or similar measures 
may be re -introduced in the future to be without merit, and notes that India proffers no evidentiary 
support for them.37 
3.2.3   Massachusetts Manufacturer Adder  
3.12.   The United States argues that the instruments providing for the Massachusetts Manufacturer 
Adder were superseded by new Program Manuals issued by the MassCEC on 5  October 2016. 
According to the Uni ted States, the  legal instruments that allegedly provided for the adder were not 
in force as of 5 October 2016, and thus not in force on 21 March 2017 when the Panel was 
established.38 
3.13.   The United States notes that the Program Manuals issued on 5 Oct ober 2016 explicitly 
terminated the Massachusetts Manufacturer Adder, effective 15 December 2016. Specifically, the 
United States highlights that the first page of both new manuals contains the following 
announcement: "As of 15  December 2016, new Applicati ons will not be eligible to receive the 
                                                
28 United States' first written submission, paras. 51 -52. 
29 California LADWP, board letter accompanying proposed resolution No. 017111, Continuation of Solar 
Incentive Program and Guidelines Modifications, Novem ber 22, 2016 (Exhibit US -9). 
30 India's first written submission, para. 252.  
31 India's response to the United States' request for a preliminary ruling, para. 14.  
32 India's first written submission, para. 252.  
33 India's first written submission, para. 25 2. 
34 Senate Bill No. 1, Chapter 132, 21 August 2016 (Exhibit IND -25). 
35 Exhibit US -9. 
36 India's response to the United States' request for a preliminary ruling, paras. 12 -16. 
37 United States' first written submission, paras. 53 and 55; and comments on India's response to the 
United States' request for preliminary rulings, paras. 10 -11. 
38 United States' first written submission, para. 59.  WT/DS510/R/Add.1  
 
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  Massachusetts Manufactured rebate adder".39 According to the United States, India acknowledges 
that the adder was "discontinued" by the new Program Manuals issued on 5 October 2016.40 
3.14.   India acknowledges that t he MassCEC has issued new program manuals, which discontinued 
the Massachusetts Manufacturer Adder. However, India considers it likely that benefits under the 
previously existing manuals continue to exist.41 
3.15.   Further, India submits that there is a ri sk that this adder or similar incentives may be 
reintroduced in the future. India argues that the legislative provisions from which the MassCEC 
derives its authority to implement the CSHWP continue to exist.42 In fact, argues India, the MassCEC 
has amended , modified and revised the program manuals periodically.43 Additionally, India submits 
that the United States does not believe that the Massachusetts Manufacturer Adder is inconsistent 
with its obligations under the relevant covered agreements.44 India considers that, accordingly, 
the issue raised by the United S tates' preliminary ruling request is similar to those faced by the 
panels in US – Poultry  and India – Additional Import Duties . In those disputes, the panels considered 
the possible repetition of a WTO -inconsistent measure or the possibility of reinstating  the status quo 
ante as a key factor in assessing whether to make findings on an expired measure.45 India submits 
that, given the ease with which the MassCEC could re -introduce the Massachusetts Manufacturer 
Adder and the fact that the United States assert s the Massachusetts Manufacturer Adder is WTO -
consistent, we must issue findings, if not a recommendation to the DSB, with respect to the 
Massachusetts Manufacturer Adder in order to secure a positive resolution to the dispute.46 
3.16.   The United States a rgues that India has not substantiated its assertion that it is likely that 
the benefits of the adder under the old manuals continue to exist. According to the United States, 
the CSHWP does not entitle participants to the continued stream of "benefits" to which India alludes. 
Likewise, the United States submits that India's concern about the risk that the Massachusetts 
Manufacturing Adder or similar incentives may be re -introduced is mere speculation unsupported by 
evidence.47 
3.3  Main arguments of a third  party48 
3.17.   The European Union recalls the Appellate Body's statement that Article 6.2 of the DSU covers 
measures "in existence" at the time of panel establishment, and considers that neither of the two 
exceptions recognised by the Appellate Body to th at general rule appear to be applicable to the LAMC 
Adder and the Massachusetts Manufacturer Adder.49 The European Union adds that a mere allegation 
by India that it is "likely" that the two adders in question continue under the old and expired rules 
witho ut any supporting evidence is insufficient; otherwise, any measure expired prior to panel 
establishment could be challenged on such a speculative basis. Regarding the alleged risk of re -
introduction, the European Union notes that such a risk has been accep ted by panels and the 
Appellate Body as a relevant consideration in situations involving the expiry of a measure after panel 
establishment but not in situations involving the expiry of a measure prior to  panel establishment. 
According to the European Union , if such an exception were to be accepted, the Panel would have 
to assess whether India established such a risk of re -introduction based on positive evidence, not 
simply on statements of a theoretical and speculative nature.50 
                                                
39 United States' first written submission, paras. 60 -61. 
40 United States' first written submission, para. 62.  
41 India's first written submission, para. 1098.  
42 India's first written submission, paras. 1080 -1095.  
43 The latest versions entered into effect on 1 May 2018. See Exhibits US -16 and US -15. 
44 India's response to the United States' request for a preliminary ruling, para. 19.  
45 India's response to the United States' request for a preliminary ruling, para. 19.  
46 India's response to the United States' request for a preliminary ruling, paras. 19 -20. 
47 United States' first written submission, paras. 53 and 55; and comments on India's response to the 
United States' request for preliminary rulings, para. 63.  
48 As mentioned, the third parties were invited to comment on the United States' preliminary  ruling 
requests as part of their third party written submissions. Of the third parties that made a third party written 
submission, only the European Union addressed the preliminary issues relating to these two adders.  
49 European Union's third party writt en submission, paras. 6 -8. 
50 European Union's third party written submission, para. 8.  WT/DS510/R/Add.1  
 
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  3.4  Analysis by the Panel  
3.4.1  The question before us  
3.18.   The United States requests us to find that the LAMC Adder and the Massachusetts 
Manufacturer Adder fall outside our terms of reference, and therefore to reject India's request for 
findings on them.51 India, in turn, requ ests us to reject the United States' preliminary ruling request 
and to "issue findings, if not recommendation[s] to the DSB", with respect to both measures.52 
3.19.   The United States' preliminary ruling request and India's response to it make reference to  
three issues: a panel's jurisdiction; a panel's making of findings in respect of measures at issue; and 
a panel's making of recommendations to the DS B in respect of measures that it has found to be 
WTO-inconsistent. These three issues are clearly related.  A panel can only make findings and issue 
recommendations on measures within its terms of reference. Importantly, however, these three 
issues are also distinct. A panel's jurisdiction with regard to specific measures, and the making of 
findings and issuing  recommendations in respect of such measures, are distinct legal concepts 
regulated in different provisions of the DSU.53 Accordingly, assessment of a panel's jurisdiction will 
be based on legal considerations different from those that may arise in the con text of a panel's 
considering whether to make findings and recommendations on measures that are within its 
jurisdiction.  
3.20.   In light of the request of the United States, we turn first to consider whether the LAMC Adder 
and the Massachusetts Manufacture r Adder are within our terms of reference.  
3.21.   Under Article 7.1 of the DSU, panels have the following standard terms of reference unless 
the parties to the dispute agree otherwise within 20 days from the establishment of the panel:  
To examine, in the l ight of the relevant provisions in (name of the covered agreement(s) 
cited by the parties to the dispute), the matter referred to the DSB by (name of party) 
in document ... and to make such findings as will assist the DSB in making the 
recommendations or i n giving the rulings provided for in that/those agreement(s).  
3.22.   Under these standard terms of reference, a panel is directed to examine the matter referred 
to the DSB by the complainant in its panel request. Article 6.2 of the DSU sets forth the requirements 
concerning requests for the establishment of a panel, with on e such requirement being the 
identification of "the specific measures at issue".54 As a matter of principle, the function of a panel 
request is "to establish and delimit the jurisdiction of the panel in a dispute, and it serves the due 
process objective of  notifying the respondent and third parties of the nature of the dispute".55 
3.23.   The Panel in these proceedings was established with the following standard terms of 
reference:  
To examine, in the light of the relevant provisions of the covered agreements  cited by 
the parties to the dispute, the matter referred to the DSB by India in document 
WT/DS510/2 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.56 
                                                
51 United States' first written submission, paras. 40, 58 and 65.  
52 India's response to the United States' request for a preliminary ruling, paras. 16, 20 and 42.  
53 The terms of reference of a panel are regulated in Articles 6.2 and 7 of the DSU. Findings and 
recommendations are treated as two different concepts in the DSU, including in its Articles 11, 12.7 and 19.2. 
For the recommendations of the DSB, see article 21 of the DSU. Additionally, past reports have treated findings 
and recommendations as different concepts. See, for example, Appellate Body Reports, US – Upland Cotton , 
para. 272; EU – Fatty Alcohols (Indonesia) , paras. 5.200 -5.201; US – Certain EC Products , para. 81; and 
Panel  Report, US – Poultry (China) , para. 7.56.  
54 Article 6.2 DSU provides that: "[t]he request for the establishment of a panel shall be made in 
writing. It shall indicate whether consultations were held, identify the specific measures at i ssue and provide 
a brief summary of the legal basis of the complaint sufficient to present the problem clearly. In case the 
applicant requests the establishment of a panel with other than standard terms of reference, the written 
request shall include the p roposed text of special terms of reference."  
55 Appellate Body Report, EC – Large Civil Aircraft , para. 786.  
56 WT/DS510/3.  WT/DS510/R/Add.1  
 
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  3.24.   India's panel request expressly identifies both the LAMC Adder and the Massachusetts 
Manufacturer Adder as measures at issue.57 Importantly, however, the LAMC Adder was "removed" 
with the issuance in December 2016 of the 2017 SIP Guidelines58, which took effect on  1 January 
2017, "replac[ing]" the 2015 SIP Guidelines.59 Similarly, the new Program Manuals of 
the Massachusetts Manufacturer Adder, issued on 5 October 2016, stated that "[a]s of December 
15, 2016 new Applications will not be eligible  to receive the Mass achusetts Manufactured rebate 
adder".60 As mentioned above, this  Panel was established on 21 March 2017. Accordingly, it appears, 
as the United States submits, that both adders were formally discontinued prior to the Panel's 
establishment. India does not c ontest this.61 To the contrary, it acknowledges that the new SIP 
Guidelines "do not contain any provisions with respect to the LAMC Adder"62, and observes that the 
new CSHWP Program Manuals "discontinued with the Massachusetts Manufacturer Adder".63 
3.25.   We note, in this connection, India's argument in a different context that the legal instruments 
that authorize the LADWP and the MassCEC to implement, respectively, the SIP and the CSHWP are 
themselves still in force.64 We will address this point below when we come to analyse India's 
submissions concerning the alleged risk that the LAMC Adder and the Massachusetts Manufacturer 
Adder may be reintroduced. At this point, we simply note that these legal instruments do not 
expressly refer to the adders challenged by India. We also note that India has not argued that the 
continuing existence of these instruments means that the adders themselves continue to exist. 
Accordingly, while we will consider the legal significance of the  continued existence of these 
authorizing instruments later in our analysis, we note that their ongoing existence does not affect 
our agreement with the parties that the two adders were discontinued prior to the establishment of 
the Panel.  
3.26.   Based on the above, we conclude that the LAMC Adder and the Massachusetts Manufacturer 
Adder expired before the establishment of this Panel.  
3.27.   Whether, as a general matter, panels may review the WTO consistency of expired measures 
is an issue that has been an alysed by prior panels and the Appellate Body. In its recent report in 
EC – PET (Pakistan) , the Appellate Body stated that "[t]he fact that a measure has expired is not 
dispositive of the question of whether a panel can address claims with respect to that measure"65, 
and recalled that, pursuant to Article 3.3 of the DSU, a Member may initiate WTO dispute settlement 
                                                
57 The LAMC Adder is referred to as follows: "3. Incentives granted and/or maintained contingent upon 
the use of domestic over impor ted goods under Los Angeles Department of Water and Power's ("LADWP") Solar 
Incentive Program in the State of California: The measures at issue are the incentives provided in the form of 
the Los Angeles Manufacturing Credit ("LAMC") for qualifying and appr oved photovoltaic ("PV") equipment 
manufactured in Los Angeles (individually and/or collectively referred to as "the PV Equipment") that has 
confirmed LADWP Solar Incentive Program reservation. The Net Energy Metering and Solar Photovoltaic 
Incentive Progr am Guidelines, 2015 provide that the goal of the LAMC is to promote local economic 
development through manufacturing and job creation within the City of Los Angeles".  
In turn, the Massachusetts Manufacturer Adder is referred to as follows: "11. Incentives granted and/or 
maintained contingent upon the use of domestic over imported goods under Massachusetts Clean Energy 
Centre's Commonwealth Solar Hot Water Program, ("CSHWP") in the State of Massachusetts: The program is 
administered by the Massachusetts Clea n Energy Centre which provides certain rebates to reduce the upfront 
cost of installing a solar hot water system. The measures at issue are rebates available for both residential -
scale and commercial -scale projects if the installed system has eligible Mass achusetts manufactured 
components (individually and/or collectively referred to as "the Installed System and Massachusetts 
Components") To qualify, the applicant is required to provide evidence that the solar hot water system uses 
components from one of th e qualified companies that manufactures in Massachusetts".  
India's request for the establishment of a panel (WT/DS510/2), pp. 3 and 10.  
58 Exhibit US -5. 
59 Minutes of the Regular Meeting of the Board of Water and Power Commissioners of the City of Los 
Angeles, California, December 6, 2016 (Exhibit US -7). 
60 See Exhibits US -17 and US -18, p. 1 (emphasis original).  
61 India's response to the United States' request for a preliminary ruling, paras. 10 -20. 
62 India's first written submission, para. 252.  
63 India' s first written submission, para. 1098.  
64 These legal instruments would be Senate Bill 1 (Exhibit IND –25) in the case of the SIP (India's 
response to the United States' request for a preliminary ruling, para. 12.), and the General Laws of the 
Commonwealth  of Massachusetts, Massachusetts Clean Energy Technology Center, Chapter 23 J, Title II 
(Exhibit IND -71) in the case of the CSHWP (India's response to the United States' request for a preliminary 
ruling, para. 18).  
65 Appellate Body Report, EU – PET (Pakis tan), para. 5.27 (referring to Appellate Body Report, EU – 
Fatty Alcohols (Indonesia) , para.  5.179).  WT/DS510/R/Add.1  
 
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  proceedings whenever it considers that any benefits accruing to it are being impaired by measures 
taken by another Member.66 It has, however, cl arified that " the deference accorded by a panel to a 
Member's exercise of its judgement in bringing a dispute is not entirely boundless".67 
3.28.   Importantly, the Appellate Body has also explained that there is a key temporal distinction to 
be made when d ealing with expired measures, depending on  whether such measures expired before 
or after the establishment of the panel . Indeed, in its above -referenced EC – PET (Pakistan) report, 
the Appellate Body acknowledged the observation of the panel in the same ca se that whereas no 
panel has declined to hear the entirety of a dispute due to the expiry of the challenged measure 
after panel establishment, some past panels have declined to make findings with respect to 
measures that expired before panel establishment.68 Further, it admonished one of the parties in 
the appeal for "overlook[ing] this temporal distinction".69 Similarly, the panel in US – Upland Cotton  
expressly noted the importance of this temporal distinction when referring to measures that expired 
prior to the request for establishment of a panel, noting that it was "a  different situation from that 
confronting some previous panels, where measures expired during their proceedings".70 
3.29.   This distinction is of the essence in the present dispute, becaus e we are dealing with measures 
that expired before  panel establishment. Consequently, the question before us is whether we have 
jurisdiction to address measures that were included in a panel request but that expired before panel 
establishment. Specifically , the question before us is whether the LAMC Adder and the Massachusetts 
Manufacturer Adder, which were duly referenced in India's panel request, are within our terms of 
reference given that both measures expired prior to the establishment of the Panel in this case.  
3.4.2   The general rule regarding measures included in a panel's terms of reference  
3.30.   We begin by noting that panels must deal with issues related to their jurisdiction.71 
The Appellate Body has affirmed that "panels have the authority to d etermine whether they have 
jurisdiction in a given case and to determine the scope and limits of that jurisdiction, as defined by 
their terms of reference".72 
3.31.   A panel's terms of reference are generally defined by the panel request that results in it s 
establishment. There may, however, be instances where measures are outside a panel's terms of 
reference even though they are identified in the panel request in accordance with Article  6.2 of the 
DSU. 
3.32.   In EC – Chicken Cuts , the Appellate Body identi fied one such instance when it stated that 
"[a]s a general rule, the measures included in a panel's terms of reference must be measures in 
existence at the time of the panel's establishment".73 We understand this to mean that, as a general 
rule, measures t hat expire prior to the panel's establishment automatically, and by virtue of their 
expiry, fall outside a panel's terms of reference. Although, as noted, in EC – PET (Pakistan)  the 
Appellate Body stated that "[t]he fact that a measure has expired is not d ispositive of the question 
of whether a panel can address claims with respect to that measure"74, that statement was made in 
                                                
66 Appellate Body Report, EU – PET (Pakistan) , para. 5.42.  
67 Appellate Body Report, EU – PET (Pakistan) , para. 5.43.  
68 Appellate  Body Report, EU – PET (Pakistan) , para. 5.38 (referring to the Panel Report, para 7.13, in 
turn referring to Panel Reports, Dominican Republic – Import and Sale of Cigarettes, para 7.343, Indonesia – 
Autos, para 14.9; China – Electronic Payment Services, para 7.227; EC – Approval and Marketing of Biotech 
Products, paras. 7.1307 -7.1308; US – Gasoline , para. 6.19; and Argentina – Textiles and Apparel, paras 6.4 
and 6.12 -6.13).  
69 Appellate Body Report, EU – PET (Pakistan) , para. 5.38. 
70 Panel Report, US – Upland Cotton , para. 7.107.  
71 The Appellate Body has noted that "panels have to address and dispose of certain issues of a 
fundamental nature, even if the parties to the dispute remain silent on those issues… The vesting of jurisdiction 
in a panel is a fun damental prerequisite for lawful panel proceedings. For this reason, panels cannot simply 
ignore issues which go to the root of their jurisdiction – that is, to their authority to deal with and dispose of 
matters. Rather, panels must deal with such issues – if necessary, on their own motion – in order to satisfy 
themselves that they have authority to proceed". (Appellate Body Report, Mexico — Corn Syrup (Article 21.5 — 
US), para. 36, referring to appellate Body Report, United States – 1916 Act , supra, footn ote 32, para. 54).  
72 Appellate Body Report, EU – PET (Pakistan) , para 5.16 (referring to Appellate Body Report, Mexico – 
Taxes on Soft Drinks , para. 45 and fn 90 thereto).  
73 Appellate Body Report, EC – Chicken Cuts , para. 156. 
74 Appellate Body Report, EU – PET (Pakistan) , para. 5.27 (referring to Appellate Body Report, EU – 
Fatty Alcohols (Indonesia) , para.  5.179).  WT/DS510/R/Add.1  
 
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  the context of analysing measures that had expired after the establishment of the panel in that case. 
Moreover, as also noted, the Appellate Body in the same case appeared to reaffirm the validity and 
importance of the distinction between measures that expire prior to the establishment of a panel, 
on the one hand, and measures that expire subsequent  to the establishment of a panel, on  the other 
hand. We therefore consider that, while a panel may have significant flexibility to decide whether 
and how to make findings on measures that expire subsequent to  its establishment75, the general 
rule that measures within a panel's terms of refer ence must exist at the time of the panel's 
establishment continues to hold. Indeed, as we understand it, the Appellate Body's statements in 
EC – PET (Pakistan)  did not concern the panel's terms of reference, but rather a panel's discretion 
to make findings  on measures within its terms of reference. That report therefore appears to confirm 
that the question whether measures existed at the time of a panel's establishment is crucial for 
determining whether those measures are outside the panel's terms of refere nce, in which case a 
panel cannot make findings on them, or within the panel's terms of reference, in which case a panel 
has discretion about whether to make findings or not.  
3.33.   As noted, neither the LAMC Adder nor the Massachusetts Manufacturer Adder were in 
existence at the time of this Panel's establishment. Therefore, the general rule would indicate that 
they fall outside our terms of reference, even though they were identified in India's panel request.  
3.4.3   Exceptions  to the general rule recognised by the Appellate Body  
3.34.   India argues that there are exceptions to the above -mentioned general rule, and requests us 
to rule on the expired adders because (i) "it is likely that the [relevant] adder benefits" "continue t o 
be provided" or "continue to  exist"; and (ii) there is a risk that the same or similar measures will be 
reintroduced.76 
3.35.   We note that the Appellate  Body has expressly qualified the general rule that the measures 
included in a panel's terms of refer ence must be in existence at the time of the panel's establishment 
by recognizing the existence of two exceptions. First,  a panel has the authority to examine a legal 
instrument enacted after its establishment if the instrument amends a measure identified in the 
panel request, provided that the amendment does not change the essence of the identified 
measure.77 Second,  "panels are allowed to examine a measure whose legislative basis has expired, 
but whose effects are alleged to be impairing the benefits accr uing to the requesting Member under 
a covered agreement at the time of the establishment of the panel".78 
3.36.   The first exception, which concerns measures amended after a panel's establishment, is 
clearly not applicable in the present case. India has no t identified any relevant subsequent 
amendments of the measures or argued that such amendments should be included within the Panel's 
terms of reference. Regarding the LAMC Adder, we have not been provided with any amendment to 
the SIP Guidelines issued aft er Panel's establishment. As for the Massachusetts Manufacturer Adder, 
the 2018 CSHWP Program Manuals were indeed issued after the Panel's establishment, but by that 
time the adder had already been discontinued through the 2016 program manuals. Therefore, we 
see no relevant amendment within the meaning of the first exception identified by the 
Appellate  Body.  
3.37.   The second exception concerns measures whose "legislative basis" expired prior to the 
establishment of a panel but that nevertheless continue to  affect the operation of one or more of 
the covered agreements.79 We note that India has not clearly argued that this exception would justify 
our finding that the LAMC and Massachusetts Manufacturer Adders are within our terms of reference. 
As we discuss i n more detail below, India has argued that benefits "continue to be provided"80 or 
                                                
75 "[I] t is for a panel to decide how it takes into account  subsequent modifications to, or expiry or 
repeal of, the measure at issue. The fact that a measure has expired is not dispositive of the question of 
whether a panel can address claims with respect to that measure". ( Appellate Body Report, EU – PET 
(Pakist an), para. 5.51).  
76 India's first written submission, paras. 252 and 1098.  
77 Appellate Body Report, EC – Chicken Cuts , para. 156 (referencing Appellate Body Report, Chile – 
Price Band System , para. 139. See also Appellate Body Report, EC – Selected Custo ms Matters, para. 184).  
78 See Appellate Body Report, EC – Selected Customs Matters, para. 184 (referencing Appellate Body 
Report, US – Upland Cotton , para. 263).  
79 Ibid. 
80 India's first written submission, para. 252.  WT/DS510/R/Add.1  
 
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  "continue to exist"81 even though the measures have expired. It has not, however, clearly explained 
the relationship between this argument and the second exception recognize d by the Appellate Body.  
3.38.   At any rate, India has not provided any evidence suggesting that the effects of the adders  are 
continuing to impair the benefits accruing to India under a covered agreement even though the 
adders themselves no longer exist. In fact, regarding the LAMC Adder, the United States has 
submitted a letter that accompanied the resolution to adopt the 2017 SIP Guidelines stating that 
"[t]here have been no requests for this manufacturing credit for over three years".82 This suggests 
that the Adder has not had any effects at all for a number of years prior to its removal from the SIP 
Guidelines before the establishment of this Panel. Regarding the Massachusetts Manufacturer Adder, 
as the United States points out, the new Program Manuals state that applicants will not be eligible 
for such adder as of December 15, 2016.83 Accordingly, and in the absence of specific evidence from 
India to the contrary, we do not see how either of these measures could have been impairing the 
benefits accruing  to India under a covered agreement at the time this Panel was established. We 
recall in this regard the basic rule on burden on proof identified by the Appellate  Body, that the party 
which asserts a fact, whether the complainant or the respondent, is resp onsible for providing proof 
thereof.84 
3.4.4   Additional arguments by India  
3.39.   India argues that, because the Appellate Body has stated that the general rule is qualified by 
"at least"85 the two exceptions discussed above, it follows that there may be other exceptions 
depending upon the facts and circumstances of each case.86 In this context, India suggests that the 
LAMC and Massachusetts Manufacturer Adders should be considered to fall within our terms of 
reference in this case because "it is likely" t hat benefits provided under the measures continue to 
be provided or continue to  exist. Additionally, India argues that we should rule on these two 
measures because otherwise there is a risk that either or both could be reintroduced.87 
3.40.   We recognize t hat the Appellate Body has referred to the existence of "at least" two 
exceptions.88 However, the Appellate Body has not specified in which other circumstances it would 
be appropriate for a panel to find that measures expired prior to the panel's establish ment are 
nevertheless within its terms of reference.  
3.41.   To limit our findings to what is necessary to resolve the preliminary issue before us, we will 
analyse whether India has established the factual premises on which it grounds its arguments in this 
regard. Only if we find that India has established that benefits provided under the measures continue 
to exist, or that there is a risk of the measures being reintroduced, will we consider whether those 
circumstances would justify our departing from the ge neral rule that measures within a panel's terms 
of reference must be in existence at the time of the panel's establishment.  
3.4.4.1   Whether benefits continue to be provided or to exist  
3.42.   Regarding the possibility that benefits under the measures continue "to be provided" or "to 
exist", we do not consider that the evidence on the record supports this argument. As we have 
already explained, India has not submitted any evidence indicat ing that the effects of the adders 
were continuing to impair benefits accruing to India under a covered agreement at the time of the 
establishment of this Panel. Likewise, India has not submitted any evidence showing the existence 
                                                
81 India's first written submission,  para. 1098.  
82 Exhibit US –9. 
83 United States' first written submission, paras. 60 -61. 
84 According to the Appellate Body it is "difficult, indeed to see how any system of judicial settlement 
could work if it incorporated the proposition that the mere ass ertion of a claim might amount to proof. It is, 
thus, hardly surprising that various international tribunals, including the International Court of Justice, have 
generally and consistently accepted and applied the rule that the party who asserts a fact, whe ther the 
claimant or the respondent, is responsible for providing proof thereof". (Appellate Body Report, US – Wool 
Shirts and Blouses , p.14). See also in a similar vein, Appellate Body Reports, Japan – Apples , para. 157; and 
Panel Report, US – Section 301  Trade Act , para. 7.15.  
85 Appellate Body Report, EC – Selected Customs Matters , para. 184.  
86 India's response to the United States' request for a preliminary ruling, para. 6.  
87 India's first written submission, paras. 252 and 1098.  
88 The Appellate Body  expressly stated that "[t]his general rule, however, is qualified by at least two 
exceptions". (Appellate Body Report, EC – Selected Customs Matters , para. 184).  WT/DS510/R/Add.1  
 
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  of ongoing benefits cause d by, or otherwise attributable to, the measures despite their 
discontinuance. In particular, India has not submitted any factual evidence that payments continue 
to be made under the adders despite their withdrawal. We agree in this regard with the United  States 
and the European Union that a mere allegation that benefits under a measure continue to be 
provided or to exist, without any factual arguments or evidence to support such a claim, is 
insufficient to establish that benefits continue to be provided or  exist under a measure that has 
formally been withdrawn. As  noted, it is the party that alleges a specific fact – in this case, India – 
that has the burden to prove it.  
3.43.   As India has not substantiated the factual basis of this argument, we do not nee d to consider 
whether the ongoing provision of benefits under the measures would, as a legal matter, justify a 
finding that the measures are within our terms of reference even though they expired prior to the 
establishment of this Panel.  
3.4.4.2   Whether t here is a risk of reintroduction  
3.44.   India submits that the frequency with which the SIP Guidelines and the CSHWP Program 
Manuals, through which the adders at question were originally maintained, have been amended in 
the past indicates that there is a r isk of these adders being reintroduced.89 We do not agree. In our 
view, the mere fact that a measure has been amended in the past does not, without more, give rise 
to a risk that that measure will be reintroduced following its discontinuance. We do not con sider that 
there is any necessary causal relationship between the frequency of past changes to a set of 
instruments and the possibility of a specific, discontinued aspect being reintroduced in the future. 
India has not provided any evidence that there is s uch a causal relationship in this case as regards 
the adders in question.  
3.45.   India further argues that, in considering whether there is a risk of the measures being 
reintroduced, the Panel should bear in mind the principle that a complaining party shou ld not be 
forced to challenge a "moving target". We agree that, in principle, a complaining party should not 
have to adjust its pleadings throughout dispute settlement proceedings in order to deal with a 
disputed measure as a "moving target". Indeed, we co nsider this to be well -established in past 
reports of the Appellate Body.90 However, we do not consider that we are somehow confronted with 
a "moving target scenario"91 in the present circumstances. We cannot find any support in either 
India's arguments or  the evidence on the record for the proposition that the two adders at issue 
were withdrawn in order to shield them from scrutiny by the Panel92, or that they may be 
(re)introduced once the risk of panel scrutiny has passed. In this connection, we recall t he Appellate 
Body's statement that WTO adjudicators "must assume that Members of the WTO will abide by their 
treaty obligations in good faith".93 Without any evidence to the contrary, we cannot assume that the 
United States is waiting to re -introduce these  measures, and thus force India into a "moving target" 
scenario.  
3.46.   India also argues that the existence of a risk of reintroduction is supported by the fact that 
the legal instruments "which authorize the [LADWP and MassCEC] to implement the [SIP and the 
CSHWP, respectively] continue to exist".94 However, the instruments in question merely grant 
general powers to the relevant agencies. They authorize the implementation of the relevant 
programs (i.e. the SIP and the CSHWP), as India notes; however, they  do not refer to, let alone 
                                                
89 India's response to the United States' request for preliminary rulings, paras. 13 and 19.  
90 Appellate Body Report, EU – PET (Pakistan) , para 5.39 (referring to Appellate Body Report, Chile – 
Price Band System , para.  144).  
91 Panel Report, US – Poultry (China) , para. 7.55.  
92 Appellate Body Report, Chile – Price Band System , para. 144.  
93 Appellate Body Report, EC – Sardines , para. 278 (referring to Appellate Body Reports, US – Shrimp , 
supra, footnote 50, para. 158; and Chile –Taxes on Alcoholic Beverages , para. 74). See also Panel Reports, 
Argentina – Textiles and Apparel , para. 6.14; and  Thailand – Cigarettes (Philippines) , footnote 1543. 
The Appellate Body also added that "always in dispute settlement, every Member of the WTO must assume the 
good faith of every other Member". (Appellate Body Report, EC – Sardines , para. 278).  
94 As noted , India argues that the LADWP derives the authority to implement the SIP from Senate Bill 1 
(Exhibit IND –25), which amended the Public Utilities Code and the Public Resources Code of the State of 
California (India's response to the United States' request f or a preliminary ruling, para. 12.), and that the 
MassCEC derives the authority to implement the CSHWP from the General Laws of the Commonwealth of 
Massachusetts, Massachusetts Clean Energy Technology Center, Chapter 23 J, Title II (Exhibit IND -71) (India' s 
response to the United States' request for a preliminary ruling, para. 18).  WT/DS510/R/Add.1  
 
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  mandate, the specific adders challenged by India. The instruments are therefore general grants of 
authority that could be exercised in any number of ways. In our view, the mere fact that instruments 
from which an authority deriv es general regulatory powers continue to be in force cannot be 
considered sufficient to substantiate a risk that such authority will adopt any specific measures not 
mandated or referenced in those underlying instruments. Otherwise, almost any legal instrum ent by 
means of which general powers are granted to an authority of a Member could, without more, be 
relied upon to claim a risk of a WTO -inconsistent measure being (re)introduced.  
3.47.   Finally, India further  supports its argument that the measures risk being reintroduced by 
noting that the United States argues that the adders in question are not inconsistent with its 
obligations under the relevant covered agreements.95 In our view, however, this alone is not 
sufficient to establish the existence of a ris k that the measures will be reintroduced. The mere fact 
that a Member considers a possible measure to be WTO -consistent does not, without more, indicate 
that that Member will actually introduce such measure. In the circumstances of the present case, 
the ve ry fact that the measures were discontinued rather suggests the contrary: the fact that the 
relevant authorities chose to withdraw the adders at issue seems, at least without evidence to the 
contrary, to suggest that they indeed no longer considered them t o be worth maintaining. We note 
in this regard that the Los Angeles Board of Water and Power Commissioners expressly terminated 
the LAMC Adder96, and according to a board letter accompanying the proposed resolution "the Los 
Angeles Manufacturing Credit wil l be removed" as "[t]here have been no requests for this 
manufacturing credit for over three years".97 In turn, the 2016 MassCEC program manuals included 
the following notice: "As of December 15, 2016, new applications will not be eligible to receive the 
Massachusetts manufactured rebate adder".98 If anything, this evidence seems to contradict India's 
argument about the risk of reintroduction of the adders in question.  
3.48.   For the above reasons, we do not consider that India has substantiated its allegat ions that 
there is a risk of the LAMC Adder and the Massachusetts Manufacturer Adder being reintroduced.99 
As noted, it is India, the party that alleges the risk of reintroduction, that has the burden to prove 
it. We therefore do not need to consider wheth er such circumstances, if established, would justify a 
finding that the measures are within our terms of reference even though they expired prior to the 
establishment of this Panel.  
3.4.5   Conclusion on the LAMC Adder and the Massachusetts Manufacturer Add er 
3.49.   In light of the above and the evidence before us, we therefore  conclude that the LAMC  Adder 
and the Massachusetts Manufacturer Adder do not fall within our terms of reference, and, therefore, 
we uphold the United  States' preliminary ruling requests concerning these two measures. 
Accordingly, we will not make any findings or issue any recom mendations regarding these two 
measures.  
                                                
95 India's response to the United States' request for preliminary rulings, paras. 15 and 18.  
96 United States' first written submission, paras. 51 -52. 
97 Exhibit US -9. 
98 Exhibits US –17 and US -18. 
99 We note that, as legal basis for its argument, India relies on three past panel reports that decided to 
make findings on expired measures based on the risk that they may be reintroduced following the panel 
proceedings ( US – Poultry (China) , Chile – Price Band System , and India – Additional Import Duties ). However, 
we consider that these reports have limited relevance for the issue before us. As the United States noted, the 
measures on which the panels made find ings in all those three disputes were actually in force at the time of 
panel establishment and expired only subsequently during the panel proceedings (see Panel Reports, US – 
Poultry , paras. 1.3 and 7.51, Chile – Price Band Systems , paras. 1.3, and 7.195, and India – Additional Import 
Duties , para. 4.18). In the present dispute, as mentioned above, the measures in question were terminated 
before the establishment of this Panel.  
Likewise, India also mentions that the Appellate Body, in US – Certain EC Produ cts, did not find any 
error with the panel's substantive findings on a measure that had lapsed prior to the establishment of the panel 
and where no analysis was done as to whether the lapsed measure continued to produce effects that were 
impairing the bene fits of the complaining party. However, we consider that the situation in that dispute was 
also different to the one under analysis. In US – Certain EC Products , part of the disagreement between the 
parties was precisely whether the measure was no longer i n existence (see Appellate Report, US – Certain EC 
Products , paras. 11 and 20). Here, on the contrary, India does not contest that the LAMC Adder and the 
Massachusetts Manufacturer Adder are no longer in existence.  WT/DS510/R/Add.1  
 
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  4  THE SOLAR THERMAL  REBATE AND THE SOLA R PV REBATE  
4.1.  The United States asks the Panel to find that two of the three programs comprising the tenth 
challenged measure, which India refers to as the "Minnesota Sola r Incentive Program" (MSIP)100, 
were not subject to consultations between the parties, and therefore fall outside the Panel's terms 
of reference.101 The two programs at issue are the Solar Thermal rebate and the Solar photovoltaic 
(PV) rebate.102 The Unite d States does not argue that India failed to identify these programs in its 
panel request, as required by Article 6.2 of the DSU. Rather, the United States' argument is that 
these programs were not identified in India's consultations request, and that Indi a's inclusion of 
them in its panel request and first written submission is therefore impermissible.  
4.1  The programs in question  
4.2.  The Solar Thermal rebate provides rebates upon the installation of solar thermal systems that 
are "Made in Minnesota".103 A solar thermal system is "Made in Minnesota" if the components of the 
system are manufactured in Minnesota and the solar thermal system is certified by the Solar Rating 
and Certification Corporation.104 The rebate is available for solar thermal systems that are installed 
on residential or commercial premises, and which are used for, inter alia , hot water or space or pool 
heating purposes.105 
4.3.  The Solar PV rebate provides rebates to owners of "qualified properties"106 who install solar PV 
modules107 manufactured in Minnesota.108 Only solar PV modules "manufactured in Minnesota" are 
eligible to receive the rebate.109 For the purposes of this program, "manufactured" is defined to 
mean110: 
a. the material production of solar PV modules, including the tab bing, stringing, and 
lamination processes; or  
b. the production of interconnections of low -voltage photoactive elements that produce the 
final useful photovoltaic output by a manufacturer operating in Minnesota.  
4.4.  The third program raised by India unde r the umbrella of the MSIP is the Solar Energy Production 
Incentive (SEPI) program. The United States has not argued that this program falls outside our 
jurisdiction. We therefore simply note that it, the like the Solar PV rebate, concerns financial 
incent ives to owners of grid -connected solar PV modules that are manufactured in Minnesota and 
that have a total nameplate capacity (i.e. intended maximum capacity) of less than 40 kilowatts.111 
4.2  Main arguments of the parties  
4.5.  In support of its request for a preliminary ruling, the United States notes that India's 
consultations request refers to a program "administered pursuant to the criterion established under 
the Made in Minnesota Solar Energy Production Incentive law ( Minnesota Statute section 216C.414, 
                                                
100 See India's first written submission,  paras. 939 -988. The third program under this heading is the 
Solar Energy Production Incentive (SEPI).  
101 United States' first written submission, paras. 66 -74. 
102 The United States does not contest that the third program, the Solar Energy Production In centive 
(SEPI) program, was identified in India's consultations request.  
103 According to India, the relevant legal instrument defines a solar thermal system as "a flat plate or 
evacuated tube … with a fixed orientation that collects the sun's radiant ener gy and transfers it to a storage 
medium for distribution as energy to heat or cool air or water". (India's first written submission, para. 964).  
104 India's first written submission, para. 965).  
105 India's first written submission, para. 966).  
106 "Qualif ied properties" are residences, multifamily residences, businesses, or publicly owned buildings 
in the assigned service area of the utilities subject to the program. (2016 Minnesota Statutes, Chapter 216C. 
Energy Planning and Conservation (Exhibit IND -66), Section 116C.7791, Subdivision 1(d)).  
107 Solar PV modules are defined for the purposes of this program as "the smallest, nondivisible, self -
contained physical structure housing interconnected photovoltaic cells and providing a single direct current of 
electrical output". (2016 Minnesota Statutes, Chapter 216C. Energy Planning and Conservation (Exhibit IND -
66), Section 116C.7791, Subdivision 1(e)).  
108 Ibid. Section 116C.7791, Subdivision 2.  
109 Ibid. Section 116C.7791, Subdivision 3(1).  
110 Ibid. Section 116C.7791, Subdivision 1(b).  
111 2016 Minnesota Statutes, Section 216C.415, Subdivisions 1 (Exhibit IND -66). WT/DS510/R/Add.1  
 
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  subd. 2 (2013))". In the United States' view, this language identifies only the Solar Energy 
Production Incentive (SEPI) program, which is established and administered "pursuant to the 
criterion" laid down in the cited l egislative instrument, and thus excludes from the scope of the 
dispute programs, such as the Solar Thermal rebate and the Solar PV rebate programs, that are 
administered pursuant to different criteria and under different legislative instruments (i.e. diffe rent 
sections of the Minnesota Statutes).112 
4.6.  India asks the Panel to reject the United States' request for a preliminary ruling, and to find 
that both the Solar Thermal rebate and the Solar PV rebate are within the Panel's terms of 
reference.113 India submits that its consultations request is broad enough to encompass both rebate 
programs, and does in fact make reference to those programs.114 In the alternative, India argues 
that even if the two programs were not identified in the consultations reques t, that document was 
nevertheless sufficient to indicate the nature of the measure and the gist of what was at issue.115 In 
particular, India argues that the "general framework of the request for consultations" contains 
language indicating "that India may raise additional factual and legal claims in the interim period 
between the request for consultations and the request for establishment of panel".116 Consequently, 
in India's view, the inclusion of the Solar Thermal and Solar PV rebates in its panel reques t neither 
expanded the scope nor changed the essence of the dispute, and was therefore permissible pursuant 
to Appellate Body jurisprudence.117 India also notes that it did raise questions concerning both the 
Solar Thermal and the Solar PV rebates during t he consultations process.118 
4.3  Main arguments of the third parties119 
4.7.  In its third party submission, the European Union notes that one of the purposes of 
consultations is to enable the parties to achieve a better understanding of, and additional i nformation 
about, each other's positions, and that therefore a complainant's claim may be expected to be 
shaped by the consultations process. The European Union recalls the Appellate Body's statements 
that the identification of a measure in a panel request  need not be identical to what was set out in 
the consultations request, provided that the complainant does not expand the scope or change the 
essence of the dispute.120 In the European Union's view, the modifications made by India in its panel 
request do not appear, at least "at first sight", to expand the scope or change the essence of the 
dispute.121 
4.8.  Japan, in its third party submission, also emphasizes the Appellate Body's statement that a 
"precise and exact identity" between a consultations reque st and a panel request is not required122, 
provided that any measures identified in the panel request that were not identified in the 
consultations request do not "expand the scope" or "change the essence of the dispute".123 According 
to Japan, these principles must guide the Panel's analysis of whether the Solar Thermal and the 
Solar PV rebates are within its terms of reference.  
  
                                                
112 United States' first written submission, paras. 71 -73. 
113 India's response to the United States' request for a preliminary ruling, paras. 21 -41. 
114 India's response to the United States' request for a preliminary ruling, paras. 28 -35. 
115 India's response to the United States' request for a preliminary ruling, para. 36.  
116 India's response to the United States' request for a preliminary ruling , para. 35.  
117 India's response to the United States' request for a preliminary ruling, para. 36.  
118 India's response to the United States' request for a preliminary ruling, paras. 29 and 36.  
119 As mentioned, the third parties were invited to comment on  the United States' preliminary ruling 
requests as part of their third party written submissions. Of the third parties that made a third party written 
submission, only the European Union and Japan addressed the preliminary issues relating to these two 
programs.  
120 European Union's third party written submission, para. 10.  
121 European Union's third party written submission, para. 11.  
122 Japan's third party written submission, para. 19.  
123 Japan's third party written submission, para. 20.  WT/DS510/R/Add.1  
 
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  4.4  Analysis by the Panel  
4.4.1   The question before us  
4.9.  As noted, the United States does  not argue that the Solar Thermal and the Solar PV rebates 
were not identified in India's panel request in conformity with Article 6.2 of the DSU. Those programs 
are, in fact, clearly and specifically identified at paragraph 10 of India's panel request in the following 
terms:  
10. Incentives granted and/or maintained contingent upon the use of domestic over 
imported goods under Made in Minnesota Solar Incentive Program ("MSIP") in the State 
of Minnesota: The measures at issue are the: (i) incentives (which a re in the nature of 
performance -based financial incentive expressed as a per kilowatt -hour amount) offered 
if the solar photovoltaic modules qualify as "Made in Minnesota"; (ii) rebates offered to 
owners of a qualified property for installing solar photovo ltaic modules manufactured in 
Minnesota; and (iii) rebates offered for the installation of "Made in Minnesota" solar 
thermal systems. The equipment mentioned at (i), (ii), and (iii) above is individually 
and/or collectively referred to as "the Minnesota Eq uipment".  
The measures under the MSIP are implemented through instruments that include, but 
are not limited to, the following, operating separately or collectively, as well as any 
amendments, modifications, replacements, successor, and extensions thereto, and any 
implementing measure or any other related measures thereto:  
(a) Minnesota Statute (2016), including, in particular, MINN. STAT. 216C.411 through 
216C.416, and MINN. STAT. 116C.7791.124 
4.10.   The United States' argument is rather that the two progr ams were not identified in India's 
consultations request. In particular, the United States notes that India's consultations request refers 
only to the "Made in Minnesota Solar Incentive Program ("MSIP") administered pursuant to the 
criterion established un der the Made in Minnesota Solar Energy Production Incentive law (Minnesota 
Statute § 216C.414, subd. 2 (2013))".125 According to the United States, this language excludes any 
and all programs that are "administered pursuant to different criteri[a]"126, including the Solar 
Thermal and Solar PV rebates.  
4.11.   The question before us, therefore, is whether the Solar Thermal and Solar PV rebates are 
within our terms of reference, or whether, as the United States argues, they fall outside our terms 
of reference because they were not identified in India's consultations request.  
4.4.2   Legal framework  
4.12.   Article 4.4 of the DSU sets out the requirements for consultations requests in the following 
terms127: 
All such requests for consultations shall be notified to  the DSB and the relevant Councils 
and Committees by the Member which requests consultations. Any request for 
consultations shall be submitted in writing and shall give the reasons for the request, 
including identification of the measures at issue and an i ndication of the legal basis for 
the complaint.  
4.13.   Article 6.2 of the DSU sets out the requirements for panel requests as follows128: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were he ld, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly. In case the applicant requests the establishment of a panel with other than 
                                                
124 WT/DS510/2, p. 9 (footnote omitted).  
125 United States' first written submission, para. 70.  
126 United States' first written submission, para. 71.  
127 Article 4.4 of the DSU  (emphasis added).  
128 Article 6.2 of the DSU.  WT/DS510/R/Add.1  
 
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  standard terms of reference, the written request shall include the proposed text of 
special terms of reference.  
4.14.   The Appellate Body has held that "Articles 4 and 6 of the DSU … set forth a process by which 
a complaining party must request consultations, and consultations must be  held, before a matter 
may be referred to the DSB for the establishment of a panel".129 Consultations are a vital step in the 
dispute settlement process130, and a consultations request plays an "important role in defining the 
scope of the dispute".131 It "informs the respondent, and the WTO Membership, of the nature and 
object of the challenge raised by the complainant, and enables the respondent to prepare for the 
consultations".132 Accordingly, even though it is the panel request that defines a panel's te rms of 
reference133, the inclusion in a panel request of measures not identified in a consultations request 
may raise concerns about whether a complaining party has been "fully forthcoming"134 during the 
consultations, as well as whether the dispute settle ment "process" provided for in Articles 4 and 6 
of the DSU has been properly followed in respect of those measures.135  
4.15.   At the same time, consultations are "but the first step in the WTO dispute settlement 
process".136 The Appellate Body has made cl ear that there need not be "a precise and exact identity" 
between the measures that were the subject of consultations and the specific measures identified in 
the panel request.137 For one thing, the use of the word "specific" in Article 6.2 of the DSU indi cates 
that greater specificity is required in a panel request than in a consultations request.138 Accordingly, 
measures may be identified in a consultations request to "some degree that is less than specific".139 
Moreover, as the Appellate Body has repeate dly acknowledged, a panel request can be "expected to 
be shaped by, and thereby constitute a natural evolution of, the consultations process".140 Thus, the 
Appellate Body has cautioned panels against imposing "too rigid a standard of identity" between a 
consultations request and a panel request.141 According to the Appellate Body, "the requirement 
under Article 4.4 to identify the measure at issue cannot be too onerous at this initial step in the 
proceedings"142, because "this would substitute the request f or consultations for the panel 
request".143 
4.16.   In light of these considerations, the Appellate Body has held that, provided that a complainant 
does not "expand the scope" or "change the essence" of the dispute in its panel request as compared 
to its co nsultations request, it is the panel request that determines the panel's terms of reference.144 
Whether the inclusion of a measure in a panel request has expanded the scope or changed the 
essence of a dispute must be assessed on a case -by-case basis145, and "involves s crutinizing  the 
extent to which the identified measure at issue … ha[s] evolved or changed from the consultations 
request to the panel request".146 When analysing whether the inclusion of a measure in a panel 
request has expanded the scope or changed the essence of a dispute, it may be appropriate for a 
panel to ask what the responding party could "reasonably have understood through" the 
consultations request147, and in particular whether the language used in the consultations request 
                                                
129 Appellate Body Report, Brazil – Aircraft , para. 131.  
130 Appellate Body Reports, US – Shrimp (Thailand) / US – Customs Bond Directive , para. 293; and US – 
Upland Cotton , para. 284.  
131 Appellate Body Repor t, Argentina – Import Measures, para. 5.12.  
132 Appellate Body Report, Argentina – Import Measures , para. 5.12.  
133 Appellate Body Report, Argentina – Import Measures , para. 5.11.  
134 Appellate Body Report, India – Patents (US) , para. 94.  
135 Appellate Bod y Report, Brazil – Aircraft , para. 131; and Panel Report, EU – Footwear (China) , para. 
7.55. 
136 Appellate Body Report, US –Upland Cotton , para. 293; and Panel Report, Russia – Tariff Treatment , 
para. 4.9. 
137 Appellate Body Reports, Argentina – Import Mea sures , para. 5.13; and  Brazil – Aircraft , para. 132;  
138 Appellate Body Report, Argentina – Import Measures , para. 5.9.  
139 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive , para. 288.  
140 Appellate Body Reports, Argentina – Import Measures , para. 5.10; and  Mexico – Anti-dumping 
Measures on Rice , para. 138.  
141 Appellate Body Report, US – Upland Cotton , para. 293.  
142 Appellate Body Report, Argentina – Import Measures , para. 5.12.  
143 Appellate Body Report, US – Upland Cotton , para. 293.  
144 Appellate Body Report, Argentina – Import Measures , para. 5.13.  
145 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive , para. 293.  
146 Appellate Body Report, Argentina – Import Measures , para. 5.13.  
147 Panel Report, US – Orange Juice (Brazil) , para. 7.25.  WT/DS510/R/Add.1  
 
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  was "suff icient to alert" the responding party that the additional measures identified in the panel 
request were part of the initial complaint.148  
4.4.3   Whether the Solar Thermal and Solar PV rebates are identified in India's 
consultations request  
4.17.   Turning to the case before us, we note, as an initial matter, that in determining the scope of 
a request for consultations, what matters is the written consultations request, and not what was or 
may have been discussed in the consultations.149 We agree with the United States that it is not 
relevant to our inquiry that during the course of the consultations India may have posed questions 
to the United States regarding the two programs at issue.150 Rather, what we need to assess is 
whether the tw o programs fall within the scope of India's written  consultations request, as contained 
in the relevant document submitted by India to the DSB.151  
4.18.   Turning, then, to the relevant documents, we note that there are clear differences between 
the releva nt sections of India's consultations and panel requests. Most importantly for present 
purposes, India's panel request specifically identifies three programs and their underlying legal 
bases: the SEPI (established by Section 216C.411 -216C.415 of the Minneso ta Statutes), the Solar 
Thermal rebate (established by section 216C.416 of the Minnesota Statutes), and the Solar PV rebate 
(established by section 116C.7791 of the Minnesota Statutes). However, as the United States has 
observed, the consultations request only explicitly identifies the SEPI by name, and only refers 
specifically to section 216C.414 of the Minnesota Statutes.  
4.19.   As we have explained, the United States' view is that because it refers to programs 
"administered pursuant to the criteria" in section 216C.414 of the Minnesota Statutes (pursuant to 
which the SEPI program is administered), India's consultations request must be read as excluding 
from the scope of the dispute any and all programs other than the SEPI program. Noting that the 
Solar T hermal and Solar PV rebates are contained in sections of the Minnesota Statutes not 
specifically referenced in the consultations request and administered according to criteria different 
from those by which the SEPI program is administered, the United State s contends that the two 
programs fall outside our terms of reference.152 
4.20.   We see some force in the United States' argument. The specific identification in the 
consultations request of section 216C.414 of the Minnesota Statutes could be interpreted as  
comprehensively delimiting the scope of India's concerns, and implying that India's complaint does 
not extend to programs established and administered under other sections of the Minnesota 
Statutes. Indeed, given India's decision to specifically identify section 216C.414 in its consultations 
request, a reader could well consider that, had India intended to include other sections of the 
Minnesota Statutes within the scope of its complaint, it would have specifically identified those as 
well. 
4.21.   Having s aid that, we also consider that the reference to section 216C.414 must not be read 
in isolation from the rest of the consultations request in which it appears.153 Importantly, and as the 
United States itself recognizes154, the reference to "programs admini stered according to the criteri[a] 
established under section 216C.414" is followed by two paragraphs that expand and elaborate upon 
it, and which, in our view, provide vital context to a proper appreciation of the import of the reference 
to section 216C.41 4. These paragraphs provide as follows:  
MSIP offers incentives to consumers who install PV and solar thermal systems using 
solar modules and collectors that are certified to be "manufactured in Minnesota". The 
program is only available to customers of one of the Minnesota's three participating 
investor -owned utilities (Minnesota Power, Otter Tail Power Company, Xcel Energy). 
                                                
148 Panel Report, Russia – Tariff Treatment , para. 4.15.  
149 Appellate Body Reports, US – Shrimp (Thailand) / US – Customs Bond Directive , paras. 291 and 294; 
US – Upland Cotton, para. 287; and Panel R eport, United States – Orange Juice (Brazil) , para. 7.17.  
150 United States' comments on India's response to the United States' request for a preliminary ruling, 
para. 19.  
151 India's consultations request, WT/DS510/1.  
152 United States' first written subm ission, paras. 72 and 73.  
153 Appellate Body Report, Argentina – Import Measures , para. 5.14. See also, e.g. Panel Report, Russia 
– Railway Equipment , para. 7.124.  
154 United States' first written submission, para. 69.  WT/DS510/R/Add.1  
 
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  The rebate is equal to 25 percent of the system -installed cost up to a maximum of 
$2,500 for residential, $5,000 for multi -family and $25,000 for commercial systems.  
There are three incentive levels depending on the ownership and system size. 
In addition, amounts vary by the module manufacturer. The three levels are For -Profit 
Commercial, Non -Profit/Public/Tax Exempt, and Residential. In centives for Made in 
Minnesota solar PV are performance -based, established by a system's energy 
production, and paid over 10 years.155 
4.22.   We will examine the import of this text in the context of the each of the specific programs in 
question.  
4.4.3.1   Solar Thermal rebate  
4.23.   We turn first to the Solar Thermal rebate. As the United States observes, the SEPI program 
administered under section 216C.414 of the Minnesota Statutes and specifically identified in the 
consultations request does not concern s olar thermal systems, but only solar PV modules. We note, 
however, that the two paragraphs from India's consultations request quoted above refer to 
"incentives" available to "consumers who install PV and solar thermal systems ".156 The paragraphs 
then descr ibe the way in which the incentives subject to the complaint are paid out. The description, 
however, appears, at least in part, to be of the way in which incentives under the Solar Thermal 
rebate, and not the SEPI program, are paid out. In particular, the first of the two paragraphs quoted 
above reflects almost exactly the method of payment under the Solar Thermal rebate program.157 
4.24.   We accept that it is somewhat unclear why the specific reference in India's consultations 
request to section 216C.414 i s followed by text that refers, inter alia , to solar thermal incentives, 
which, as noted, are not dealt with in that section.  Ultimately, however, the question we need to 
answer is whether the more specific and accurate identification of the Solar Thermal rebate in the 
panel request expanded the scope or changed the essence of the dispute from the consultations 
request, or whether it represents a reasonable evolution from the consultations request.158  
4.25.   As noted, in answering this question it may be a ppropriate to consider what the respondent 
could reasonably have understood from the language actually used in the consultations request.159 
In our view, the references to solar thermal incentives in the consultations request, although 
associated with the incorrect legislative instrument, would have "alerted" the United States to the 
fact that this program was part of the object of India's complaint. Indeed, there would have been 
no reason for India to include references to solar thermal incentives in the t ext of its consultations 
request, and those references would not have had any meaningful purpose, unless India had 
intended to bring the Solar Thermal rebate within the scope of this dispute. To find otherwise would 
be to effectively read these references out of India's consultations request. Such an approach would 
not, in our view, be consistent with the principle of interpreting consultations requests holistically. 
The paragraphs, then, indicate that India was challenging the Solar Thermal rebate as well as the 
SEPI, even though it appears to have insufficiently distinguished the two programs from one another.  
4.26.   We do not consider it implausible that a complaining Member, at the time of submitting a 
consultations request, might be under some confusion  about the precise identity of, and relationship 
between, specific legal provisions and the programs they established. In this connection, we recall 
the Appellate Body's guidance that one of the purposes of consultations is precisely to enable the 
disputin g parties to "exchange information" and clarify the scope of the dispute, including the 
measures at issue, prior to initiating panel proceedings.160 It has also recognized that "a complaining 
party may learn of additional information during consultations".161 Thus, consultations, which are 
"but the first step" in the dispute settlement process162, may enable that Member to clarify its 
                                                
155 India's consultations request, WT/DS/510/1.  
156 Emphasis added.  
157 India's consultations request, WT/DS510/1, p. 4. See India's first written submission, paras. 968 -969 
and Section 216C.416, subdivis ion 3, of the Minnesota Statutes (Exhibit IND -110).  
158 Appellate Body Report, Argentina – Import Measures , para. 5.13.  
159 Panel Report, Russia – Tariff Treatment , para. 4.15.  
160 Appellate Body Report, Mexico – Corn Syrup  (Article 21.5 – US), para. 54.  
161 Appellate Body Report, Mexico – Anti-dumping Measures on Rice , para. 138.  
162 Appellate Body Report, US –Upland Cotton , para. 293.  WT/DS510/R/Add.1  
 
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  understanding and gain a sharper appreciation of the identity and operation of, and the relationship 
between, the measures a bout which it is complaining.  
4.27.    We also recall the Appellate Body's statement that, because Article 4.4 requires Members to 
identify the "measures" at issue, whereas Article 6.2 requires identification of the " specific  measures 
at issue"163, complai nants are not required to identify the "specific" measures at issue in their 
consultations request; identification of the measures at issue "to some degree that is less than 
specific" will suffice at this early stage of dispute settlement proceedings.164  
4.28.   In light of the above, we are of the view that the specific identification in India's panel request 
of the Solar Thermal rebate and the legal instrument underpinning it (i.e. section 216C.416 of the 
Minnesota Statutes) neither expanded the scope nor  changed the essence of the dispute. 
The program was already within the scope of the dispute by virtue of both the references in the 
consultations request to incentives for solar thermal systems and the description in that document 
of the way in which the incentives are paid out. While these did not specifically identify the Solar 
Thermal rebate, they were sufficient to establish the scope of the dispute as containing that program, 
and to alert the United States to the fact that India intended to challenge the Solar Thermal rebate. 
Accordingly, the increased specificity of in the panel request represents a reasonable "evolution" 
from a more general to a more detailed and accurate description of this program.  
4.4.3.2   Solar PV rebate  
4.29.   We now turn to the  Solar PV rebate. The two paragraphs from India's consultations request 
reproduced above refer to incentives for "solar PV … modules". As we have explained, the SEPI 
program, which is administered pursuant to section 216C.414 of the Minnesota Statutes and which 
is explicitly identified in the consultations request, itself concerns Solar PV modules. It might 
therefore be reasonable to read the reference to Solar PV modules in India's consultations request 
as referring to the SEPI program itself, rather than to another, unidentified incentive program 
concerning Solar PV modules.  
4.30.   At the same time, we note that the SEPI program and the Solar PV rebate are very close in 
their scope and effect. Like the SEPI program, the Solar PV rebate offers incentives to  consumers 
who install Solar PV modules that are manufactured in Minnesota. This similarity and potential 
overlap seems to be recognized in the instrument establishing the SEPI program itself, which 
provides that consumers who receive the SEPI are ineligib le to receive the Solar PV rebate in 
addition. This suggests to us that the two programs are basically intended to work together, as two 
complementary alternatives operating in the same field.165 As we see it, then, the Solar PV rebate 
is closely "connecte d" to the SEPI program.166 
4.31.   We recall the Appellate Body's confirmation that a "complaining party may learn of additional 
information during consultations – for example, a better understanding of the operation of a 
challenged measure".167 On occasion , a Member may learn through the consultations process that 
the alleged nullification or impairment about which it is concerned is caused or contributed to by 
measures about which it was not previously aware, or about whose relationship with measures 
identified in the consultations request it did not fully or accurately understand. In such circumstances 
it may be that the identification of such additional measures in the panel request will not expand the 
scope or change the essence of the dispute, but rathe r represent an "evolution" and further definition 
and delimitation of it. Of course, whether that is so can only be determined on a case -by-case 
basis.168 
4.32.   In the present case, the Solar PV rebate is similar in type and substance to the SEPI, and is 
closely connected to it. In our view, it can be said to fall within the subject -matter of the dispute as 
delimited in India's consultations request, and in particular within the scope of the phrase "incentives 
to consumers who install PV … systems", even i f it was not specifically identified in that document 
                                                
163 Emphasis added.  
164 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive , para. 288.  
165 India' s first written submission, para. 977 (citing section 216C.415, subdivision 6 (Exhibit IND -66)). 
166 Panel Report, China – Broiler Products , para. 7.224.  
167 Appellate Body Report, Mexico – Anti-dumping Measures on Rice , para. 138.  
168 Appellate Body Repor t, US – Shrimp (Thailand) / US – Customs Bond Directive , para. 293.  WT/DS510/R/Add.1  
 
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  as a program separate from, although operating alongside, the SEPI program. Therefore, in our 
view, its inclusion in India's panel request did not expand the scope of the dispute.  
4.33.   We further note  that India's claims in respect of the Solar PV rebate are identical to its claims 
about the SEPI. This further suggests to us that India's identification of the former in its panel 
request has not changed the "essence" of the dispute but simply identified  an additional, closely 
related program that is alleged to be contributing to the claimed WTO violations about which India 
signalled its concern in the consultations request.  
4.34.   Accordingly, we consider that the inclusion of the Solar PV rebate in Ind ia's panel request did 
not expand the scope or change the essence of the dispute. Rather, such inclusion represents a 
reasonable evolution from the consultations request, identifying and defining the specific programs 
at issue in more detail as required by  Article 6.2 of the DSU.  
4.4.4   The "general framework" of India's consultations request  
4.35.   As noted, in addition to its specific arguments concerning the part of the consultations request 
dealing with the Solar Thermal and Solar PV rebates, India also submits that the "general framework" 
of its consultations request contains language indicating "that India may raise additional factual and 
legal claims in the interim period between the request for consultations and the request for 
establishment of p anel"169, and that therefore the inclusion of the Solar Thermal and Solar PV rebates 
in its panel request neither expanded the scope nor changed the essence of the dispute.170 
4.36.   We have some doubt about whether general language in a consultations requ est indicating 
that a Member may include additional measures in its panel request will always or necessarily 
preclude a panel from finding that inclusion of additional measures in the panel request has 
expanded the scope or changed the essence of the dispu te. Ultimately, the significance and import 
of such general language will need to be assessed on a case -by-case basis, taking into account all 
the relevant circumstances.171 In this case, we need not explore this issue further. We have already 
concluded, o n the basis of the specific part of the consultations request concerning the Solar Thermal 
and Solar PV rebates, that the inclusion of those programs in India's panel request neither expanded 
the scope or changed the essence of the dispute, and thus repres ented a reasonable evolution from 
the consultations request.  
4.4.5   Conclusion on the Solar Thermal and Solar PV rebates  
4.37.   For the above reasons, we conclude that the inclusion of the Solar Thermal and Solar PV 
rebates in India's panel request neither  expands the scope nor changes the essence of the dispute, 
and accordingly represents a reasonable evolution from India's consultations request. We therefore 
conclude that both programs are within our terms of reference, and we reject the United  States' 
preliminary ruling requests concerning these two programs.  
 
 
 
 
 
_______________  
 
  
                                                
169 India's response to the United States' request for a preliminary ruling, para. 35.  
170 India's response to the United States' request for a preliminary ruling, para. 36.  
171 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive , para. 293.  WT/DS510/R/Add.1  
 
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ANNEX  E 
INTERIM REVIEW  
Contents  Page  
Annex E -1 Interim Review  86 
 
  WT/DS510/R/Add.1  
 
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  ANNEX  E-1 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  In compliance with Article  15.3 of the DSU, this Annex  sets out the Panel's discussion and 
disposition of the arguments made at the interim review stage. The Panel has modified certain 
aspects of its Interim  Report  in the light of the parties' comments where the Panel considered it 
appropriate, as explained be low. In addition, the Panel has made a number of changes of an editorial 
nature to improve the clarity and accuracy of the Report, or to correct typographical and other non -
substantive errors, including but not limited to those identified by the parties.  
1.2.  As a result of these changes, in particular the deletion from the Final Report  of paragraph  7.366 
and footnote 747 thereto of the Interim  Report , the numbering of subsequent footnotes and 
paragraphs  in the Interim  Report  has been reduced by one in the Final Report . Otherwise, the 
paragraph  and footnote numbering in the Interim and Final  Reports is identical.  
2  INDIA'S REQUEST CONC ERNING PARAGRAPH  7.7 AND FOOTNOTE 187  
2.1.  India argues that, at paragraph  7.7 of the Interim  Report , the Panel incorrectly states that 
India's arguments concerning a panel's jurisdiction over measures amended after panel 
establishment cite only one panel report. In India's view, this is "not correct", because "in response 
to [Panel] questi on No. 102, India has cited numerous panel and Appellate  Body reports, on each 
point, with respect to treatment of measures that have been amended or terminated after the 
establishment of a panel".1 India thus requests that the Panel "review and suitably a mend" the 
paragraph  in question.2 
2.2.  The United  States  did not comment on this request.  
2.3.  In Panel question No. 102, we asked India to clarify the nature of the findings and 
recommendations it was seeking on measures that were amended or terminated following pa nel 
establishment, and to explain the legal basis for such findings and recommendations. India explained 
the legal basis on which panels may make findings and recommendations on measures amended 
following panel establishment in sub paragraph  1(ii) of its re sponse, as follows:  
Amendments or revisions to the original measures challenged by a complainant in its 
panel request are also within the terms of reference of a panel if: (a) the terms of 
reference are broad enough to include amendments/ revisions; (ii) t he new measure 
does not "change the essence" of the original measures included in the panel request; 
and (c) the inclusion of amendments within the panel's terms of reference is necessary 
to secure a positive solution to the dispute3. 
_______________  
3 Panel Report, EC – IT Products , para. 7.139.  
2.4.  That paragraph  is supported by reference to the panel report in a single dispute, namely EC - IT 
Products.  
2.5.  It is true that, more generally in its response to question No. 102 (which, as noted, was broadly 
phrased a nd concerned more than just the circumstances in which panels have jurisdiction over 
amended measures) India also referred to other panel and Appellate  Body reports. Such  references 
were made, however, in the context of arguments concerning different aspec ts of India's requests 
for findings and recommendations, and not on the specific issue of the circumstances in which 
amendments to a measure made after panel establishment will fall within a panel's terms of 
reference.3 
                                                
1 India's request for review of the Interim  Report, para.  4. 
2 India's request for review of the Interim  Report, para.  4. 
3 Thus, with reference to the reports mentioned by India in its request for review, India referenced the 
Appellate  Body's report in EC – Chicken Cuts  to support its argument that "[a] challenged m easure that is in 
existence at the time of the establishment of a panel is properly within the terms of the reference of the panel" 
(India's response to Panel question No.  102, para.  1(i)). India referred to the Appellate  Body Report in Chile – WT/DS510/R/Add.1  
 
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  2.6.  Paragraph  7.7 of our Interim  Report , however, deals with precisely the question of the 
circumstances in which panels have jurisdiction over amendments to measures made after panel 
establishment.4 The first sentence of the paragraph  makes this clear, in the following terms: "Neither 
party has  engaged in detail with past cases that have dealt with the issue of a panel's jurisdiction 
over measures amended after panel establishment ".5 Following this sentence, the Panel makes the 
statement to which India objects. However, as our summary of India's  response to Panel question 
No. 102 makes clear, that statement accurately reflects that, on the specific issue discussed in 
paragraph  7.7, India did indeed refer only to a single panel report. The  fact that India referred to 
other reports in support of different arguments concerning the legal basis for its requests for findings 
and recommendations is not relevant to the paragraph  in ques tion. Neither  does the statement to 
which India objects suggest that India did not reference other panel or Appellate  Body reports in 
connection with other legal arguments.  
2.7.  We therefore do not think that the statement to which India objects is incorrect. N evertheless, 
in an effort to address India's concern, we have added the word "specific" in the relevant sentence, 
to make even clearer that our statement relates only to India's argument concerning the 
circumstances in which amendments to a measure made af ter panel establishment will fall within a 
panel's terms of reference, and not to other of India's arguments relating to other legal issues arising 
in relation to the Panel's treatment of amended and terminated measures. We  have also amended 
the relevant f ootnote to clarify that we are referring to the relevant portion of India's response, i.e. 
paragraph  1(ii), and not to paragraph  1 of India's response in general.  
3  INDIA'S REQUEST CONC ERNING PARAGRAPHS  7.28-7.29 
3.1.  India requests that the Panel review its find ing, in paragraphs  7.28 and 7.29 of the 
Interim  Report , that the "made in Washington" bonus is not an amendment to the Washington State 
additional incentive, but rather a distinct measure falling outside the Panel's terms of reference.6 
India "considers th at the reasoning adopted by the Panel … is not correct".7 In particular, 
India argues that the test applied by the Panel in this connection is different from the test applied 
in respect of other amended measures. In India's view, the reasons given by the P anel as to why 
the "made in Washington" bonus was a distinct measure "cannot be the guiding factors to decide 
whether a measure is included within the terms of reference".8 Rather, in India's view, the Panel 
should have applied the three -pronged test it ap plied to determine whether other amended 
measures were within the terms of reference.9 India also notes that the "made in Washington" bonus 
is similar to the Washington State additional incentive in a number of ways, including in its "design 
and structure" , and argues that it is therefore a "mere extension[] of the original".10 
3.2.  Additionally, India argues: (i) that the fact that the "made in Washington" bonus entered into 
force at a different time than the Washington State additional incentive is "given", and  all 
amendments enter into force after the measure that they amend11; (ii) that the Panel's reasoning 
may frustrate the purposes of dispute settlement to the extent it suggests that a Member could 
"easily amend the measure to adopt a similar measure" and th us create a "moving target" 
situation12; and (iii) that the Panel's reasoning in this connection is contrary to its analysis with 
                                                
Price Band System  in support of its submission that "[w]here the amendments/revisions to the original 
measure have been found to be within the terms of reference, a panel has jurisdiction to issue findings and 
recommendations on the as amended measure" (India's respo nse to Panel question No.  102, para.  1(v)). 
Finally, India referred to the panel report in China – Raw Materials  to support its arguments about when a 
panel may make recommendations on a terminated measure or a measure that is "revised or implemented 
throu gh" a series of measures (India's response to Panel question No.  102, paras.  1(iv) and 1(vi)).  
4 We note, in this connection, that the issue of when such amendments fall within a panel's terms of 
reference, and the issue of what findings and recommendation s a panel may make on such measures if and 
when they are found to fall within its terms of reference, are distinct – a point we made clearly in our 
Interim  Report. See Interim  Report, paras.  7.4 and 7.17.  
5 Interim  Report, para.  7.7 (emphasis added).  
6 India's request for review of the Interim  Report, para.  5. 
7 India's request for review of the Interim  Report, para.  6. 
8 India's request for review of the Interim  Report, para.  8. 
9 India's request for review of the Interim  Report, para.  8. 
10 India's request for review of the Interim  Report, para.  8. 
11 India's request for review of the Interim  Report, para.  10. 
12 India's request for review of the Interim  Report, para.  10. WT/DS510/R/Add.1  
 
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  respect to the SGIP Handbooks, where the Panel decided to examine both the 2016 and the 
2017 SGIP Handbooks despite differences  between the two instruments in scope and coverage.13 
3.3.  The United  States  requests us to reject India's request. According to the United  States , 
"India  has provided no rationale why this finding [i.e. in the impugned paragraphs] should be 
altered".14 The United States  provides three reasons why we should reject India's request. First, the 
United  States  argues that the "made in Washington" bonus is not within the Panel's terms of 
reference because it was enacted after the date the Panel was established.15 Second,  the 
United  States  submits that India's assertion that the Panel was required to apply "a certain 
'three -pronged test'" in its assessment of whether the "made in Washington" bonus fell within its 
terms of reference is misplaced, because the reports on whic h India relies in this regard were not 
based on the text of the DSU, and India has not identified any text in the DSU that would support 
the use of such a test.16 Finally, the United  States  argues that India's concern that the "made in 
Washington" bonus wil l remain "perpetually exempt from DSB findings unless the Panel renders 
findings on the measure" is "unfounded", because "[t]he Member subject to a recommendation is 
not somehow exempt from the compliance provisions of the DSU simply because the Member 
replaces or amends the measure subject to DSB recommendations".17 
3.4.  In our view, India's request seems to misunderstand important aspects of our reasoning. 
Importantly, India suggests that we applied a different test in the impugned paragraphs  than we did 
in res pect of other amended measures, and that this was an error. In fact, the "three -pronged test" 
referred to by India – and which we applied in respect of other amended measures18 – is a test to 
determine whether an amendment made after panel establishment fal ls within a panel's terms of 
reference. As the impugned paragraphs  indicate, however, we did not agree with India that the 
"made in Washington" program actually was an amendment. There was therefore no reason for us 
to apply the three -pronged test to deter mine whether it fell within our terms of reference. In other 
words, the three -pronged test may be useful where a post -establishment amendment to a measure 
has been identified, and the question is whether that amendment is within a panel's terms of 
referenc e. However, where, as here, a claimed amendment is in fact found to be a separate and 
distinct measure, application of the three -pronged test would not be appropriate.  
3.5.  We have explained already in  our Interim  Report  why we considered the "made in Washingto n" 
bonus to be a separate measure, and not a "mere extension" of the Washington State additional 
incentive. We do not need to rehearse those reasons in detail here. Nevertheless, we make the 
following observations to further explain why we consider that In dia's interim review arguments in 
this connection do not speak to the distinction we draw in our report between amendments to a 
measure on the one hand and separate and distinct measures on the other hand.  
3.6.  First, contrary to India's suggestion19, we do not consider that the fact that two measures have 
similarities, in terms of their design and structure, in itself necessarily means that they are the same 
measure for purposes of WTO dispute settlement. Conversely, in our view, the fact that two 
instruments ha ve different product coverage does not exclude the possibility that one instrument is 
an amendment to the other. As we see it, the relationship between two instruments can only be 
determined on a case -by-case basis, by taking all relevant facts and circums tances into account.20 
Our conclusions in the paragraphs  challenged by India are a result of such a holistic analysis.  
                                                
13 India's request for review of the Interim  Report, para.  11. 
14 United  States' comments on India's request for review of the Interim  Report, para.  2. 
15 United  States' comments on India's request for review of the Interim  Report, paras.  3 - 4. 
16 United  States' comments on India's request for review of the Interim  Report, para.  6. 
17 United  States' comments on India's request for review of the Interim  Report, para.  7. 
18 We explained why we considered it appropriate to rely on this test in para gragraphs  7.8 – 7.16 of our 
Interim  Report.  
19 India's request for review the Interim  Report, para.  8. 
20 In this connection, we note the Appellate  Body's guidance, in the context of Article  21.5 of the DSU, 
that determining the relationship between two instruments must be assessed on a case -by-case basis, 
involving "an examination of the timing , nature, and effects of the various measures", as well as an analysis of 
the existence of "close links" between the two instruments and the relevant factual and legal background. 
Appellate  Body Report, US – Softwood Lumber IV (Article  21.5 – Canada) , para . 77. Although we are not faced 
in this case with a question about the relationship between instruments under Article  21.5 of the DSU, we 
consider that the Appellate  Body's approach is analogous to the issue addressed in the paragraphs impugned 
by India.  WT/DS510/R/Add.1  
 
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  3.7.  Second, we disagree with India that our reasoning in the impugned paragraphs  would enable 
responding Members to create a "moving target situation". The phrase "moving target" generally 
refers to a situation where a responding Member continuously modifies or repeals and re -enacts a 
challenged measure, perhaps in order to avoid panel  or Appellate  Body scrutiny. In this case, 
however, the question was whether a new bonus was an amendment to an incentive identified in 
India's panel request (which remained in force concurrently with the new bonus), or whether it was 
a separate measure. T hat is clearly a different question, and one that, in our view, does not implicate 
the issue of moving targets.  
3.8.  For these reasons, we decline India's request to review our findings in paragraphs  7.28 and 
7.29 of our Interim  Report . 
4  INDIA'S REQUEST CONC ERNI NG PARAGRAPHS  7.72 AND 7.77  
4.1.  India requests that the Panel "review its observations" in paragraphs  7.72, 7.76, and 7.77 of 
its Interim  Report .21 India indicates that it "does not agree with the Panel's reasoning and 
conclusion" in those paragraphs.22 Accordin g to India, in paragraph  7.72 of the Interim  Report , the 
Panel states that " Article  10, Section 28(a) of the Senate [Bill] No. 1456 does not address the issue 
of timing of any final payment, in particular in respect of applications approved prior to the ef fective 
date of [the] repeal legislation". India submits that "[o]n this basis, the Panel concludes that India 
has not demonstrated a prima facie  case that the Minnesota solar thermal rebate has ongoing 
effects".23 It argues, however, that it did show how t he Senate File addresses the timing of final 
payments. Moreover, in India's view, "[u]nless the United  States  dislodges this understanding with 
evidence, India has indeed prima facie  demonstrated the ongoing effects of the Minnesota solar 
thermal rebate". Because the Panel was not convinced by the evidence submitted by the 
United  States  on this point, "the United  States  has failed to dislodge the prima facie  demonstration 
by India".24 
4.2.  The United  States  did not comment on this request.  
4.3.  In our view, India's re quest stems from a misreading of our reasoning in the relevant 
paragraphs. Paragraphs  7.71 and 7.72  of the Interim  Report  address Senate Bill No. 1456, which 
India submitted as evidence that the Minnesota solar thermal rebate has ongoing effects. We closel y 
examined the provisions of that instrument relied on by India, but found that, contrary to India's 
submission, they did not "clearly answer the question whether rebate payments may continue 
following the repeal of the Minnesota solar thermal rebate, in p articular with respect to previously 
approved recipients".25 
4.4.  Following our review of Senate Bill No. 1456, we proceeded to assess whether the 2017 Guide 
for Applicants submitted by the United  States  threw additional light on India's claim that the 
Minnesota solar thermal rebate has ongoing effects. We concluded that it did not.26 
4.5.  Finally, we recalled that,  as India requested us to make findings and recommendations on the 
Minnesota thermal rebate, it was India's burden to show prima facie  that that measure had ongoing 
effects despite its formal repeal. We concluded that, in light of the limited argumentation  and 
evidence before us, it had failed to do so.27 
4.6.  As this summary indicates, and as the relevant paragraphs  of our Interim  Report  make clear, 
we found that the text of Senate Bill No. 1456 submitted by India was insufficient to establish a 
prima facie  case that the measure at issue had ongoing effects. The fact that the 2017 Guide for 
Applicants submitted by the United  States  did not shed further light on this issue does not change 
this. The fact that the United  States ' arguments were not, in our view, convincing, does not mean 
that we were required to accept India's submissions on this issue, or to find that India has made a 
prima facie case. As the party claiming that the measure had o ngoing effects, it was India's burden, 
                                                
21 India's request for review of the Interim  Report, para.  16. 
22 India's request for review of the Interim  Report, para.  14. 
23 India's request for review of the Interim  Report, para.  13. 
24 India's request for review of the Interim  Report, para.  14. 
25 Interim  Report, para.  7.72. 
26 Interim  Report, paras.  7.73 - 7.75. 
27 Interim  Report, para.  7.76. WT/DS510/R/Add.1  
 
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  and not the United  States ', to make a prima facie  case in this regard, and we concluded, based on 
the limited evidence and arguments before us, that India had failed to do so.  
4.7.  India is therefore incorrect to suggest t hat, because we did not accept the United  States ' 
submission on this point, "the United  States  … failed to dislodge the prima facie demonstration by 
India". We found that India had not made a prima facie  case in this regard in the first instance; 
there was  therefore no prima facie  that the United  States  was required to dislodge.  
4.8.  For these reasons, we decline India's request to review our findings in paragraphs  7.72 and 
7.77 of our Interim  Report . 
5  INDIA'S REQUEST CONC ERNING PARAGRAPH  7.265  
5.1.  India has drawn to  our attention a typo in the title of a panel report referenced in 
paragraph  7.265 of the Interim  Report, and requested that we correct this.  
5.2.  The United  States  did not comment on this request.  
5.3.  We have made the correction requested by India.  
6  INDIA'S REQUEST  CONCERNING PARAGRAPHS  7.271 -7.272  
6.1.  India requests that the Panel review its conclusions, in paragraphs  7.271 and 7.272 of the 
Interim  Report , that India did not establish a prima facie  case that the Montana tax incentive 
(Measure  8) modified the conditions  of competition in respect of the final product (i.e. ethanol) as 
well as the wood and wood -based products used to distil ethanol.28 India notes that the Panel 
accepted that domestic and imported ethanol were "like products" within the meaning of Article  III:4 
of the GATT  1994, and also recalls that the Panel accepted earlier in its report that a finding of less 
favourable treatment need not be based on actual market effects. India argues that, having so 
found, "there is no reason [for the Panel] to apply a different test or principle for assessing less 
favourable treatment with respect to the final product".29 Moreover, India submits that it "is not 
required to show any additional evidence of flow through of incentives to the final product".30 
India states tha t, for these reasons, it "does not agree with the Panel's observations" on this issue 
in paragraphs  7.271 and 7.272.31 
6.2.  The United  States  did not comment on this request.  
6.3.  India's request for review suggests that the Panel applied a different test in assessing whether 
imported ethanol is accorded treatment less favourable than ethanol produced from Montana -origin 
ingredients. In particular, India suggests that we required it  to show "evidence of flow through of 
incentives to the final product". Neither of these two assertions accurately describes our findings.  
6.4.  In paragraph  7.270 of the Interim  Report , we accept India's argument that the measure at 
issue accords treatment less  favourable to imported wood and wood -based products used to distil 
ethanol than to the like Montana -origin products. Then, in paragraph  7.271, we find that India had 
not shown that the measure additionally accords treatment less favourable to imported tha n to 
locally -produced ethanol. As paragraph  7.271 makes clear, this finding is based on the fact that, in 
contrast with its sufficiently detailed argumentation explaining how the measure accorded treatment 
less favourable to imported than to local wood and  wood -based products, India's argumentation on 
ethanol failed to explain how the measure accorded less favourable treatment to imported than to 
domestic ethanol, and in particular why a measure that modifies the conditions of competition in 
respect of wood  and wood -based products would necessarily modify the conditions of competition in 
respect of a distinct product (i.e.  ethanol) made from those wood and wood -based products. As the 
paragraph  notes, India "simply asserted" that the measure would have such e ffect. We explained 
                                                
28 India's request for review of the Interim  Report, paras.  18 and 19.  
29 India's request for review of the Interim  Report, para.  19. 
30 India's request for review of the  Interim  Report, para.  19. 
31 India's request for review of the Interim  Report, para.  19. WT/DS510/R/Add.1  
 
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  that in our view, mere assertion "without more detailed explanation" was not sufficient to establish 
a prima facie  case of less favourable treatment.32 
6.5.  It is true that, in paragraph  7.271, we observed that "[s]uch flow -through must, howe ver, at 
least be argued by the complaining party". This was not, however, a suggestion that India was 
required to show the existence of actual flow -through. Rather, the point, which is emphasized again 
later in the paragraph, is that India, as the complain ant, was required at least to explain how, 
because Measure  8 accorded treatment less favourable to imported than to domestic ingredients, it 
also, by virtue of its design and structure, accorded treatment less favourable to the imported than 
to the domesti c final product (ethanol). India did not do so. While our report does not discount the 
possibility  that a measure affecting the conditions of competition of ingredients of a product may 
also affect the conditions of competition of the final product, we con cluded that India, by merely 
asserting the existence of such an effect, had not adduced sufficiently detailed arguments to 
establish a prima facie  case. That finding stems from our application of the ordinary rules concerning 
burden of proof, as well as ou r duty under Article  11 of the DSU to make an objective assessment 
of the matter. It does not stem, as India suggests, from the application of a legal test that is different 
to the test applied earlier in the analysis in respect of wood and wood -based prod ucts (and indeed 
throughout our assessment of less favourable treatment).  
6.6.  Our conclusion is therefore not based on our applying a different legal test, nor did we require 
India to submit evidence of actual flow -through. Rather, we applied the same test we applied 
throughout our analysis as regards less favourable treatment, but found in this specific instance that 
India failed to satisfy its burden of proof by submitting sufficient argumentation to make a prima 
facie case that Measure  8 accords less favoura ble treatment to imported than to domestic ethanol.  
6.7.  Finally, we observe that, in our view, India's submission that we had already found domestic 
and imported ethanol to be like is, while true, not germane. As we explain in the Interim  Report33, 
a violation of Article  III:4 exists where three elements are satisfied. One of these elements is that 
the products in question are like. Another is that the measure accords treatment less favourable to 
imported than to like domestic products. These elements are of cou rse interrelated, but each needs 
to be satisfied separately, on its own terms with sufficient argumentation. Thus, the mere fact that 
products are like does not in itself automatically lead to the conclusion that a given measure accords 
treatment less favo urable. That is a separate element involving different considerations, and it must 
be sufficiently established. To the extent that India's request for review suggests that our finding 
that domestic and imported ethanol are like products itself furnished a basis for finding that the 
measure accords treatment less favourable to imported than to domestic products, we disagree. 
India as the complainant bore the burden of making a prima facie  case in respect of all the elements 
of Article  III:4. In our view, how ever, as indicated in the impugned paragraph, India did not do so 
with respect to its claim that Measure  8 accorded treatment less favourable to imported than to 
domestic ethanol.  
6.8.  For these reasons, we decline India's request to review our findings in paragraphs  7.271 and 
7.272 of our Interim  Report . 
7  INDIA'S REQUEST CONC ERNING PARAGRAPHS  7.361 -7.369  
7.1.  India "disagrees with the Panel's analysis" in paragraphs  7.361 -7.369  of the Interim  Report , 
and calls into question the specific reasons set out in those parag raphs  for exercising judicial 
economy on India's claims under Articles  3.1(b) and 3.2 of the SCM Agreement .34 
7.2.  The United  States  responds that India's request for review of the Panel's exercise of judicial 
economy with respect to India's prohibited subsidy c laims lacks any merit.35 
7.3.  More specifically, India argues that the Panel was not obligated to rule on India's claims under 
the SCM Agreement  only if India's other claims under other agreements raise issues of subsidies, as 
the Panel seems to suggest in parag raph 7.362 and 7.363 of the Interim  Report . According to India, 
the fact that the claims in the EC – Export Subsidies on Sugar  dispute pertained to Articles  3.3 and 
                                                
32 Interim  Report, para.  7.271.  
33 Interim  Report, para.  7.85. 
34 India's request for review of the Interim  Report, paras.  20-22. 
35 United  States' comments on India's req uest for review of the Interim  Report, para.  8. WT/DS510/R/Add.1  
 
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  8 of the Agreement on Agriculture and Article  3 of the SCM Agreement  (all dealing with subsidies) 
is inconsequential. The only criterion relevant for exercising judicial economy is whether a finding 
and recommendation with respect to one claim, and abstention from issuing findings and 
recommendations with respect to certai n other claims, would "fully resolve" the dispute.36 
7.4.  India adds that the Panel's observation in paragraph  7.365 that "India's claims under 
Article  III:4 of the GATT  1994 and Articles  2.1 and 2.2 of the TRIMS Agreement do not relate to 
subsidies" is "incorre ct".37 
7.5.  According to India, while it specifically requested the Panel to issue findings and 
recommendations on each of its claims, "the Panel never posed any question to India as to why 
should it not apply judicial economy with respect claims under the SCM Agreement  if it were to find 
the measures to be inconsistent with the provisions of Article  III:4 of the GATT  1994." Therefore, 
for the Panel to state that India, at no point, referred to Article  4.7 or the special remedies therein 
is "unreasonable". India adds that the provisions of Article  4.7 of the SCM Agreement  are mandatory 
in nature. Once a panel has found that a challenged measure is a prohibited subsidy, it shall make 
an additional recommendation as described in Article  4.7 of the SCM Agreement .38 
7.6.  The United  States  responds that India does not cite any provision of the DSU, nor does such a 
provision exist, that would support India's contention that the Panel was required to make findings 
on each and every claim in India's  request for panel establishme nt.39 Referring to Articles  3.7 and 
11 of the DSU, the United  States  argues that the text of the DSU supports the discretion of a panel 
to exercise judicial economy40 and nothing in the text of these provisions indicates that a panel is 
required to examine o r make findings on each and every claim made by a complaining party.41 
7.7.  The United  States  adds that India's suggestion that the Panel was "under an obligation " to 
render findings on India's prohibited subsidy claims due to the "special remedies" available un der 
Article  4.7 of the SCM Agreement  is unfounded. According to the United  States , Article  4.7 simply 
provides for a certain recommendation in the event the Panel has found the existence of a prohibited 
subsidy. The United  States  contends that, contrary to  India's position, nothing in Article  4.7 requires 
a panel to make a finding on every prohibited subsidy claim set out in a request for panel 
establishment, thus Article  4.7 does not preclude a panel from exercising judicial economy.42 The 
United  States  adds that, indeed , in prior disputes, the Appellate  Body has upheld a panel's decision 
to decline to make findings on prohibited subsidy claims for reasons of judicial economy.43 
7.8.  We begin by recalling our statement, in paragraph  7.345 of the Interim  Report , that, according 
to the Appellate  Body, "[j]udicial economy refers to the discretion of a panel to address only those 
claims that must be addressed 'in order to resolve the matter in issue in the dispute'", and "th[is] 
discretion of a panel …  is consistent with the aim of the WTO dispute settlement mechanism, as 
articulated in Article  3.7 of the DSU, to 'secure a positive solution to a dispute'".44 We therefore 
agree with India that the effective resolution of the dispute is the key considerati on for a panel's  
assessment whether to exercise judicial economy.  
7.9.  That said, we do not agree with India that we were somehow supposed to address a question 
to India seeking specific reasons for not exercising judicial economy. In our view, even in the abs ence 
of a specific question, India could be reasonably expected to have understood that the Panel might 
decide to exercise judicial economy on some of India's claims. This is so not only because of panels' 
                                                
36 India's request for review of the Interim  Report, para.  23. 
37 India's request for review of the Interim  Report, para.  24. 
38 India's request for review of the Interim  Report, para.  25 
39 United  States' comments on India's request for review of the Interim  Report, para.  8. 
40 United  States' comments on India's request for review of the Interim  Report, para.  9. 
41 United  States' comments on India's request for review of the Interim  Report, para.  10. 
42 United  States' comments on India's request for review of the Interim  Report, p ara. 11. 
43 United  States' comments on India's request for review of the Interim  Report, para.  12. 
44 Appellate  Body Report,  EU – PET (Pakistan) , para.  5.20 (footnotes  omitted, referring to 
Appellate  Body Reports, US – Wool Shirts and Blouses , p. 19; India – Patents (US) , para.  87; Brazil – 
Retreaded Tyres , para.  257; Canada – Wheat Exports and Grain Imports , para.  133; US - Lead and Bismuth II , 
paras.  71 and 73; Argentina – Footwear (EC) , para.  145; Australia – Salmon , para.  223; and Japan – 
Agricultural Pro ducts II , para.  111).  WT/DS510/R/Add.1  
 
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  discretion to exercise judicial economy in certain  circumstances45, but also in light of the numerous 
disputes in which panels actually chose to exercise judicial economy on claims similar to those raised 
by India before us.46 We also note that, in the specific context of these proceedings, India has 
explic itly requested us to address all of its claims.47 In our view, such a request presupposes and 
implies India's recognition that the Panel might not make findings on all of its claims, including by 
possibly exercising judicial economy. Also, India has had amp le opportunity to provide any and all 
arguments for its specific requests, including any possible exercise of judicial economy. Indeed, 
the United  States  explicitly requested us to exercise judicial economy48, and the parties exchanged 
arguments on this mat ter in the course of the dispute.49 
7.10.   Turning to India's requests in the context of the EC – Export Subsidies on Sugar , we note that 
our analysis in paragraphs  7.362 -7.364 summarizes our reading of the Appellate  Body report in that 
dispute. In particular, as introduced by paragraph  7.316, paragraphs  7.362 -7.364 identify the 
reasons why we consider that the Appellate  Body's analysis in EC – Export Subsidies on Sugar  is not 
directly applicable to the present dispute, in cluding the difference in the provisions at issue in EC – 
Export Subsidies on Sugar  and the present dispute, and the fact that – unlike in EC – Export 
Subsidies on Sugar  – we have not made any finding that a prohibited subsidy is involved.  
7.11.   Despite India's arguments, we stand by the relevance of those distinctions. We continue to 
consider that the Appellate  Body's analysis in EC – Export Subsidies on Sugar should not be read as 
articulating a general principle excluding the exercise of judicial economy on cl aims under the 
SCM Agreement .50 
7.12.   Turning to Article  4.7 of the SCM  Agreement, w e agree with India this provision uses 
mandatory language, and that "once a panel has found that a challenged measure is a prohibited 
subsidy", it shall make an additional recomme ndation as described in Article  4.7 of the 
SCM Agreement . The latter is precisely our point in paragraphs  7.363 -7.365  of the Interim  Report . 
As explained in paragraph  7.365  of the Interim  Report , our finding that the measures at issue violate 
Article  III:4 of the GATT  1994 neither entails nor implies that the measures at issue are or are not 
subsidies. We see this as a key difference from EC – Export Subsidies on Sugar , which involved a 
finding o f prohibited subsidy. To avoid any misunderstanding in this regard, and as requested by 
India, we have adjusted the penultimate sentence of paragraph  7.365 to avoid suggesting that 
India's claims under Article  III:4 of the GATT  1994 and Articles  2.1 and 2. 2 of the TRIMs  Agreement 
"do not relate to subsidies" and to state instead that these provisions do not relate to subsidies.  
7.13.   As regards paragraph  7.366  of the Interim  Report , India also argues that it did not need to 
refer specifically to Article  4.7 of th e SCM Agreement  in order to obtain a ruling on its claims under 
that Agreement. India adds that its request for consultations and request for establishment of a 
panel refers to Article  4 and Article  4.4 of the SCM Agreement  respectively. India argues that,  given 
that it had referred to Article  4 of the SCM Agreement  in its request for the establishment of a panel, 
it was obviously referring to the special rules and additional procedures on dispute settlement under 
the SCM Agreement .51 
7.14.   In response, we recall that paragraph  7.366 of the Interim  Report  merely notes, as a matter 
of fact, that at no point before the interim review did India make any specific reference to Article  4.7 
of the SCM Agreement  or argue the relevance of the "special remedies" under that p rovision – not 
                                                
45 Appellate  Body Report,  EU – PET (Pakistan) , para.  5.20 (footnotes  omitted, referring to 
Appellate  Body Reports, US – Wool Shirts and Blouses , p. 19; India – Patents (US) , para.  87; Brazil – 
Retreaded Tyres , para.  257; Canada – Wheat  Exports and Grain Imports , para.  133; US - Lead and Bismuth II , 
paras.  71 and 73; Argentina – Footwear (EC) , para.  145; Australia – Salmon , para.  223; and Japan – 
Agricultural Products II , para.  111).  
46 Interim  Report, paras.  7.349 -7.352 and 7.356 -7.359.  
47 India's first written submission, paras.  1175-1178. See also India's oral comment in first substantive 
meeting, part of the official record (minute 15:19 of the meeting on 10 October 2018), and second written 
submission, para.  99 and footnote 76.  
48 United States' opening statement at the second meeting of the Panel, para.  5. 
49 India's first written submission, paras.  1175-1178. See also India's remarks at the first meeting of the 
Panel, part of the official record (minute 15:19 of the meeting on 10 Octobe r 2018), and second written 
submission, para.  99 and footnote  76; and United  States' opening statement at the second meeting of the 
Panel, paras.  5 and 8.  
50 Interim  Report, para.  7.364.  
51 India's request for review of the Interim  Report, para.  25. WT/DS510/R/Add.1  
 
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  even in the context of its request that we address all its claims. That said, we agree with India that 
ultimately this omission is not determinative of the applicability of Article  4.7 of the SCM Agreement . 
Accordingly, we have deleted parag raph 7.366, noting that this does not alter our conclusion that, 
in our reading, the Appellate  Body's report in EC – Export Subsidies on Sugar  does not articulate a 
general principle that a panel may never exercise judicial economy on claims under the 
SCM Agreement .52 More generally, we continue to disagree with any proposition that, absent a 
finding that a measure at issue involves prohibited subsidies, Article  4.7 would exclude the exercise 
of judicial economy altogether with regard to claims under the SCM Agreement . As we have 
explained, the central question is whether it is necessary to deal with all of a complainant's claims 
in order to secure a positive solution to the dispute.  
7.15.   India also argues that judicial economy with regard to its claims under the SCM Agreement  
"absolves the United  States  from its obligation s to notify the challenged measures (which offer 
prohibited subsidies) to the Committee on Subsidies and Countervailing Measures under Article  25 
of the SCM Agreement ".53 
7.16.   The United  States  responds that this argument by India "is baseless" , as the Panel's decision 
to exercise judicial economy with respect to India's prohibited subsidy claims does not operate to 
discharge the United State s of any notification obligations with re spect to the challenged measures.54 
7.17.   In response to India's argument, we reiterate that we have made no findings that the 
measures at issue are prohibited subsidies as we did not consider that necessary for resolving the 
dispute before us. As we have stated in paragraph  7.372  of the Interim  Report55, given that in our 
view it is not necessary to determine whether the measures at issue are prohibited subsidies in order 
to resolve this dispute, it follows a fortiori  that it is also not necessary for us to assess  whether those 
measures, if they were prohibited subsidies, would have needed to be notified as such under 
Article  25 of the SCM Agreement . We also agree with the United  States' observation56 that our 
decision to exercise judicial economy with respect to In dia's prohibited subsidy claims obviously does 
not operate to discharge the United State of any notification obligations with respect to the 
challenged measures.  
7.18.   India also argues that, unlike in the present dispute, the complainants in China – Auto Parts 
had themselves offered to the panel to exercise judicial economy in its discretion. Unlike India, we 
do not consider this factual difference to be determinative. As the Appellate  Body stated, "nothing 
in [Article  11 of the DSU] or in previous GATT practice  requires  a panel to examine all legal claims 
made by the complaining party"57, and "a panel has the discretion  to determine the claims it must 
address in order to resolve the dispute between the parties".58 It is a corollary of such discretion59 
that a compl ainant's suggestions as to whether a panel should or should not exercise judicial 
economy, while pertinent, do not deprive a panel of authority to exercise judicial economy where it 
finds it appropriate to do so.  
8  INDIA'S REQUEST CONC ERNING PARAGRAPH S 8.7(C) AND 8.7 (F)-(H) 
8.1.  India argues that certain subparagraphs  of paragraph  8.7 of the Interim  Report, which contains 
the Panel's recommendations, fail to identify certain instruments forming part of the some of the 
measures at issue.60 India indicates that, if w e accept some or all of its requests concerning the 
specific subparagraphs, we may also need to review certain other parts of the Interim  Report to 
make any necessary consequential changes.61 
8.2.  The United  States did not comment on this request.  
                                                
52 Interi m Report, para.  7.362.  
53 India's request for review of the Interim Report, para. 27.  
54 United  States' comments on India's request for review of the Interim  Report, para.  13. 
55 Final Report, para.  7.371.  
56 United  States' comments on India's request for revi ew of the Interim  Report, para.  13. 
57 Appellate  Body Report, US – Wool Shirts and Blouses , para.  339 (emphasis original).  
58 Appellate  Body Report, India – Patents (US) , para.  87 (emphasis added).  
59 See footnote 44 above.  
60 India's request for review of the Interim  Report, paras.  34-38. 
61 India's request for review of the Interim  Report, para.  39. WT/DS510/R/Add.1  
 
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  8.3.  With respect t o subparagraph  8.7(c) of the Interim  Report, India requests that we add a 
reference to the Administrative Rules of Montana  18.15.701 – 18.15.703 and 18.15.710 – 18.15 -
712.62 
8.4.  We have made this change to subparagraph  8.7(c), and  have also made related amendments 
in paragraphs  2.23 and 7.150 to clarify that these regulations provide further details on the 
administration and implementation of Measure  4. We have made a corresponding change in 
subparagraph  8.4(c) to ensure consistenc y between our findings and recommendations.  
8.5.  With respect to subparagraph  8.7(f) of the Interim  Report, India requests that we add a 
reference to the Request for Qualification for Eligible Contractors and Third Party PV System 
Owners .63 
8.6.  The omission identifi ed by India was accidental. We have therefore made this change to 
subparagraph  8.7(f), added a reference to this instrument at paragraph  7.150, and made a 
corresponding change in subparagraph  8.4(f) to ensure consistency between our findings and 
recommenda tions.  
8.7.  With respect to subparagraph  8.7(g) of the Interim  Report, India requests that we add a 
reference to the Renewable Energy Plans adopted by the MPSC -regulated electric providers including 
the Rate Book of Service adopted by Consumer Energy Company an d approved by the Michigan 
Public Service Commission.64 
8.8.  We note that the only such plan submitted to the Panel was the "Rate Book for Electric Service" 
adopted by the Consumer  Energy Company. As we understand it, however, this instrument is not 
part of Meas ure 8. Rather, it was adopted by the Consumer Energy Company in compliance with 
that Measure. This understanding is confirmed by India's first written submission65 and its response 
to a question from the Panel about the relevance of the Rate Book, in which India indicated that the 
Rate Book was submitted as " an example of how electric providers and electric utilities, as the case 
may be, can implement provisions of PA 342 or PA 295 ".66 We therefore understand that the 
Rate Book is not itself part of Measure  8, but was rather submitted by India as evidence of the 
operation of that Measure. Accordingly, we reject India's request to add a reference to this 
instrument in our recommendations, and we have removed the misplaced reference to the Rate  Book 
from footnot e 396.  
8.9.  Finally, with respect to paragraph  8.7(h), India requests that we add a reference to the Rules 
and Procedures to Implement the Renewable Energy Portfolio Standard .67 
8.10.   The omission identified by India was accidental, and we have therefore made this cha nge to 
subparagraph  8.7(h). We have also made a corresponding change in subparagraph  8.4(h) to ensure 
consistency between our findings and recommendations.  
9  UNITED  STATES ' REQUEST CONCERNING  PARAGRAPH  8.7 
9.1.  The United  States  argues that the measures identifie d at paragraph  8.4 of the Interim  Report , 
(i.e. the measures found to be inconsistent with Article  III:4 of the GATT  1994) and the measures 
to which the recommendations in paragraph  8.7 applies "must be the same". Accordingly, the 
United  States  request tha t we delete the list of measures in sub paragraphs  (a)-(j) of paragraph  8.7 
of the Interim  Report , and instead merely refer to "the measures identified in paragraph  8.4(a) -
(j)".68 
9.2.  Invoking Article  19.1 of the DSU, the United  States  also requests that we dele te the 
recommendation that the United  States  bring "itself" into compliance, and instead recommend that 
                                                
62 India's request for review  of the Interim  Report, para.  35. 
63 India's request for review of the Interim  Report, para.  36. 
64 India's request for review of the Interim  Report, para.  37. 
65 India's first written submission, para.  745. 
66 India's response to Panel question No.  39. 
67 India's request for review of the Interim  Report, para.  38. 
68 United  States' request for review of the Interim  Report, para.  3. WT/DS510/R/Add.1  
 
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  the United  States  bring into compliance the measures that have been found to be inconsistent with 
Article  III:4 of the GATT  1994.69 
9.3.  India did not comment  on this request.  
9.4.  As regards the chapeau  of paragraph  8.7 of the Interim  Report , in light of the language of 
Article  19.1 of the DSU, we have adjusted it in the Final  Report to focus our recommendations on 
the measures at issue as opposed to recommending that the United  States  bring "itself" into 
compliance.  
9.5.  As regards the sub paragraphs  of Article  8.7 of the Interim  Report , we note that there are two 
differences from paragraph  8.4 of the Interim  Report , concerning sub paragraphs  (b) and (j). 
In paragraph  8.4, these sub paragraphs  include unconditional conclusions of inconsistency with 
Article  III:4 of the GATT  1994 concerning:  
- the 2016 SGIP Handbook70 (under Measure  2), which was amended and replaced by the 
2017 SGIP Handbook following panel establishment71; and  
- Sections 216C.411 – 415 of the 2016  Minnesota Statutes (under  Measure  10)72, which were 
repealed following panel establishment.73 
 
9.6.  Conversely, in paragraph  8.7 of the Interim  Report , the corresponding sub paragraphs  (b) and 
(j) contain more nuanced recommendations in regard to these instruments conditioned essentially 
on their continued operation.  
9.7.  Under Article  19.1 of the DSU, "[w]here a panel … concludes that a  measure is inconsistent 
with a covered agreement, it shall recommend that the Member concerned bring the measure into 
conformity with that agreement."74 Although this may be read as "suggest[ing] that it is not within 
a panel's … discretion to make a recom mendation in the event that a finding of inconsistency has 
been made", "the Appellate  Body has found that the expiry of the measure may affect what 
recommendations a panel may make."75 As the Appellate  Body notes:  
In this vein, some panels have found it not  appropriate to make a recommendation to 
the DSB after they had found that the measure was no longer in force. Other panels 
have made a recommendation in such circumstance, albeit limited in scope. In US – 
Certain EC Products , the Appellate  Body found an i nconsistency between the finding of 
the panel that the relevant measure was no longer in existence and the subsequent 
recommendation of the panel that the DSB request the United  States  bring that 
measure into conformity with its WTO obligations.76 
9.8.  As explai ned in paragraph  7.59 of the Interim  Report , depending on the circumstances, it may 
or may not be appropriate for a panel that has made findings on a measure repealed after panel 
establishment to make recommendations in respect of that measure. In particul ar, a panel's decision 
whether to make recommendations in respect of such a repealed measure must depend on a careful 
examination of the nature of the subsisting "matter", and whether there are concrete actions or 
steps that a respondent could take, beyond  repeal, to ensure that the repealed measure is no longer 
impairing benefits accruing to a Member under the covered agreements.77 
9.9.  Accordingly, we see no reason to eliminate the distinction between our unconditional conclusion 
of inconsistency in sub paragraph  8.4(j) and our conditional recommendations in 
                                                
69 United  States' request for review of the Interim  Report, para.  2. 
70 Interim  Report, subparagraph 8.4(b).  
71 Interim  Report, pa ragraphs 2.15 and 7.30.  
72 Interim  Report, subparagraph 8.4(j).  
73 Interim  Report, paragraphs 2.56 and 7.61.  
74 Footnotes omitted.  
75 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , paras.  5.199 -5.200 (footnotes omitted).  
76 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , para.  5.200 (footnotes omitted).  
77 Paragraph  7.59. See more generally the distinction we made in our preliminary ruling concerning the 
following three related issues: (i) a panel's jurisdiction; (ii) a panel's making of findings  in respect of measures 
at issue; and (iii) a panel's making of recommendations to the DSB in respect of measures that it has found to 
be WTO -inconsistent. Annex  E-1, para.  3.19. WT/DS510/R/Add.1  
 
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  subparagraph  8.7(j) of the Interim  Report as regards the repealed Minnesota solar energy 
production incentive (SEPI) program under Measure  10. 
9.10.   We consider that a similar logic applies in regard to Measure 2. Given that we decided to 
assess the WTO -conformity of both the 2016 and 2017 versions of the SGIP Handbook, we see 
legitimacy in making unconditional findings of inconsistency with regard to both versions of the 
SGIP Handbook but only conditional r ecommendations in regard to the 2016 SGIP Handbook, which 
was replaced by the 2017 SGIP Handbook. We  believe that this is in accordance with the ultimate 
consideration of securing a positive solution to the dispute.78 As explained by the Appellate  Body, 
"[w]hile a finding by a panel concerns a measure as it existed at the time the panel was established, 
a recommendation is prospective in nature in the sense that it has an effect on, or consequences 
for, a WTO Member's implementation obligations that arise af ter the adoption of a panel and/or 
Appellate  Body report by the DSB ".79 
__________  
                                                
78 As explained in paragraph 7.17, the question of which version or versions o f an amended measure a 
panel addresses, and the precise recommendations that it makes, will depend first and foremost on the 
complainant's specific request and on what is necessary to secure a positive solution to the dispute.  
79 Appellate  Body Reports, China – Raw Materials , para.  260. 