Renewable energy subsidies and WTO law  

“As countries take steps to address the climate crisis, the last thing we need is the WTO interfering with innovative climate programs. Ontario’s solar and wind incentives program seeks to reduce dangerous carbon pollution and create clean energy jobs, and it should serve as a model for other countries, not a punching bag”(Ilana Solomon, Sierra Club Trade Representative in response to the WTO panel reports in Canada-Certain Measures Affecting the Renewable Energy Generation Sector/Canada-Measures Relating to the Feed-In Tariff Program (Canada – Renewable Energy).

These words highlight perfectly the contentious relationship between the World Trade Organization (WTO) legal framework and green energy. The growing importance attached to the topic of global warming has shifted the attention of the entire planet on the controversial issue of energy, which was previously limited to a secondary role.Renewable energies have a key role to play towards the mitigation of climate change. According to the well-known Stern Review on the Economics of Climate Change, climate change is the “greatest and widest-ranging market failure ever seen”.^[1]In particular there are two market failures that justify public support for innovative renewable energy technologies, as stated by the Intergovernmental Panel on Climate Change (IPCC). The first refers to the failure to take into account the benefits or positive externalities created by renewable energy, whereas the second refers to the failure to internalize the societal costs or negative externalities of fossil fuels. The result is a price below the social optimal cost for fossil fuels and an expensive fare for renewable energy goods and services.

Nowadays, due to externalities, the pricing of both renewable energies and fossil fuel is not accurate, thus the economic way to redress both green energy and fossil fuel prices is through governmentalintervention. Governments have the powerto grant price supports to companies investing in renewables or to consumers who buy renewable energy. These price supports can take the form of capital grants, soft loans, favorable tax treatment, and R&D funding^[2]. Particular importance is given to the Feed-in-Tariffs (FITs) mechanism, which is an energy policy instrument aimed at supporting the development of new renewable energy projects, based on long-term contracts for the purchase of electricity produced from them^[3]. In other words, enterprises, which own the electricity grid, are obliged to purchase electricity generated from renewable sources at a tariff set by the public authorities and guaranteed for a specific period of time.

Despite the need to provide incentives to stimulate renewable energy production the legality of the incentive mechanisms in question has been challenged in the context of the WTO dispute settlement system, given that these incentives could be unfair or discriminatory to trading partners. Hence WTO framework was not conceived to take into account renewable subsidies^[4]. As Professor Cosbey & Mavroidis state: ‘Markets work well when it comes to ice cream, but not necessarily so when it comes to clean air’^[5].

Since the original version of GATT 1947 the lack of clarity in the general sector of subsidiesissue arose. According to Article XVI countervailing measures applies to subsidies only if they caused or threatened to cause serious prejudice to the interests of any other contracting party. However, no definition is given to key terms such as “subsidy”or “serious prejudice”.

In an attempt to remedy these shortcomings, new “codes” regulating subsidies were designed: the Agreement on Subsidies and Countervailing Measures (SCM Agreement) for industrial subsidies and the Agreement on Agriculture (AoA Agreement) for agricultural subsidies^[6]. For the scope of the present research we will focus only on the analysis of the former, considering the relevance of the cases law concerning its interpretation.

Although the SCM Agreement can be seen as the major source of law governing subsidies, we do not find any distinction between subsidies and subsidies related to green energy. Hence the SCM Agreement does not provide any exception for renewable energy incentives. In this respect the agreement may be found inadequate to balance international trade and environmental issues.

Are measures supporting renewable energy to be considered ‘subsidies’ according to WTO law? Do we need a redrafting of the WTO legal system in order to take into account the positive externalities generated by green energy? Is the present legal framework coherent with the needs arising from climate change?

In order to answer the aforementionedquestions,the presentresearch proceeds as follows:In the first part of the paper we will outline the current WTO regime applicable to subsidies (Section I). In the second part we will discuss the risks of incompatibility between renewable energy support measures and the SCM Agreement (Section II). In the third part we will provide some doctrinal attempts to redress the incompatibilities between green subsidy and the WTO legal framework (Section III). Finally, in the last part we will give our conclusions.

Section I: Overview of the SCM Agreement

In recent years, the number of trade disputes involving subsidies increased rapidly, becoming at the same time more and more complex. The SCM Agreement has a key role to play in this field. The purpose of the agreement is to establish disciplines on trade-distorting subsidies at the multilateral level.

The panel in the US – Export Restraintsdispute found that it is not possible to state that any government intervention which, according to economic theory, could be considered as a subsidy is a subsidy within the meaning of the SCM Agreement^[7]. The requirements for a subsidy to be deemed to existare provided under Article 1 of the Agreement, which states that a government measure shall be considered a ‘subsidy’ only if it is: a financial contribution, or income or price support, by a government, or a public body (1); that confers a benefit upon the recipient (2). Furthermore, the subsidy must be specific to certain enterprises to fall within the scope of the SCM Agreement (3).

1. Financial contribution

The SCM Agreement provides four basic categories of financial contributions. These categories are interpreted in a broad manner by the WTO, covering both direct and indirect forms of financial measures. As stated by the Appellate Body in the US-Softwood lumber IV dispute, this list contains various forms of contributions including direct transfer of funds such as loans and grants, government revenues that are otherwise due forgone, and government provision of goods and services^[8].

An example of this broad approach is provided in the United States – Treatment for Foreign Sales Corporationsdispute, where the Appellate Body stated that deductions for certain foreign-sales corporations, when complying with certain criteria, were foregone government revenue and thus constituted a subsidy under Article 1.1(a)(1)^[9]. A similar observation was made in the dispute concerning the subsidies granted to Boeing: the reduction in Washington State of the business and occupation tax rate, applied to manufacturers of commercial aircraft, did indeed constitute a foregone government revenue and was qualified as a subsidy^[10].

2. Benefit

According to Articles 1.2 and 14 of the SCM Agreement, a subsidy is only deemed to exist if a benefit is conferred on the private entity, the recipient, as a result of financial contribution provided by the government. The use of this term necessarily implies the existence of a beneficiary, who must be a legal or natural person^[11].

To affirm the existence of a benefit the recipient must be better off than in the absence of the contribution. In Canada – Aircraft, the Appellate Body interpreted of the term “benefit” under Article 1.1(b) as follows: “a financial contribution will only confer a ‘benefit’, i.e., an advantage, if it is provided on terms that are more advantageous than those that would have been available to the recipient on the market”^[12]. When these two elements are combined, there is therefore a subsidy within the meaning of the Agreement.

It is important to stress that in the comparison analysis the Appellate Body mainly focuses on the market condition, in line with the WTO jurisprudence regarding the determination of “like product”^[13].

However, in some instances the Appellate Body used alternative benchmarks. This is the case in particular when the market is too distorted by government interventions^[14]. In such circumstances, the Appellate Body decided to use alternative point of comparison. In EC – Large Civil Aircraft, the Appellate Body stated that the criterion must reflect the market condition absent the contribution^[15]. Similarly, in US – Softwood Lumber IV, the Appellate Body ruled that out-of-country prices may be a useful benchmark to determine the existence of benefit, in situations in which the government is the predominant provider of goods or services^[16].

3. Specificity

Following Article 2 of the SCM Agreement, financial contribution by a government that confers a benefit only becomes a subsidy if it is “specific”. If the granting of subsidy depends on ‘objective criteria or conditions which are neutral, which do not favor certain enterprises over others, and which are economic in nature and horizontal in application, such as number of employees or size of enterprises’, it cannot be considered specific^[17]. To assess the fulfillment of this criteria is not necessary to demonstrate the compliance with ‘a rigid quantitative definition’ but rather that the subsidy is ‘sufficiently limited’, or that is not ‘sufficiently broadly available throughout the economy’^[18].

In particular, there are two types of specificity: de jure specificity and de facto specificity. On the one hand, de jurespecificity exists if a regulation expressly confines the subsidy to certain industries. On the other hand, de facto specificity is deemed to exist when an excessive amount of support is directed to a particular industry even if the regulation is neutral in this concern.

The two types of subsidies that are legally deemed as specific are export subsidies^[19]and import substitution subsidies^[20].

Section II: The risks of incompatibility between the SCM Agreement and renewable energy subsidies

The legality of incentives for renewable energy has been challenged in several WTO disputes. Current case law does not provide a clear answer as to whether the measures supporting renewable energy goods and services are allowed or not under the SCM Agreement. Do renewable energy subsidies meet the criteria previously analyzed? In order to answer suchquestion we will analyze whether green subsidies comply with the requirementsof financial contribution (1), benefit (2)and specificity (3).

1. Do renewable energy incentives constitute financial contributions within the meaning of Article 1.1 (a)?

Concerning the first criteria in the WTO jurisprudence we do not find particular hesitation in affirming the existence of a financial contribution related to renewable energy subsidy. As analyzed in the previous paragraph, Article 1.1(a)(1) of the SCM Agreement provides a broad list of measures that constitute a financial contribution. Common forms of renewable energy subsidies are therefore included in this broad list^[21]. In Canada – Renewable Energy, for instance, the Appellate Body had no doubt in arguing that Ontario’s feed-in tariff scheme corresponded to a ‘government purchase of goods’and thus was a financial contribution as per Article 1.1(a)(1)(iii) SCM Agreement.

2. Do renewable energy incentives provide a “benefit” within the meaning of Article 1.1 (b)?

The Panel in Canada – Renewable Energyhas highlighted some principles already mentioned in other occasions by the WTO decision-making bodies^[22]: to assess whether or not an advantage is conferred, it is not necessary to compare the position of the beneficiary with that of its competitors, but rather with the position it would otherwise have held in the absence of the contribution.

As previously mentioned, price for renewable energy are high because they do not take into account the positive externalities that they provide to society. Producers of renewable energy cannot thus be considered better off, but rather in a position of disadvantage as incentive measures merely compensate the higher price that they pay. Hence following this reasoning green subsidies do not confer a benefit within the meaning of Article 1 of the SCM Agreement.

It should be noted that in order to carry out this comparing analysis, it is necessary to identify the relevant product market^[23]. Concerning this point the Appellate Body argues “that a financial contribution that confers an advantage on its recipient cannot be determined in absolute terms, but requires a comparison with a benchmark, which, in the case of subsidies, derives from the market”. In the Panel Report on Canada – Renewable Energy, the market identified by the complainants – the wholesale electricity market – is not an indicator to be relied upon, as it is not sufficiently competitive^[24].

In particular the involvement of the government as a supplier of a specific product, make it impossible to compare the position of the beneficiary with or without the financial contribution and impedes any possibility of reference to the market in which that beneficiary operates^[25]. Following this reasoning the Panel concluded that the financial contribution, while existing, does not confer any advantage, thus making the measure in question not covered by the definition of subsidy. The Appellate Body, although it criticized the analysis of the Panel, reached the same conclusion due to the lack of evidence that Ontario’s FIT program conferred a benefit.

1. Do renewable energy incentives are to be considered specific within the meaning of Article 2?

The third criteria for a measure to be deemed a subsidy is the specificity.Most renewable energy subsidies are explicitly confined to certain industries, considering that they represent a specific part of the entire energy market, making relatively easy to affirm the compliance with the specificity criteria^[26]. In this sense Professor Rubini states that:

“ Whether the subsidy targets only a certain technology (eg wind or solar) and certain uses (eg transport, electricity or heat), or is rather more generally available across the broad spectrum of renewable energy sources and applications, focusing on investment or R&D, whether it operates at the levels of supply or demand of renewable energy, the fact remains that renewable energy is still a small, albeit increasingly significant, player in the energy market”.

Hence even if the application of renewable energy goods and services increases in the future, it would still represent a small part of a broad market.

Section III: Some attempts to redress the incompatibilities between green subsidy and the WTO legal framework

Academic writings pointed out some proposals in order to solve the uncertainties created by renewable energy subsidy and WTO law. In particular we will focus our attention on the theory arguing the reinstating of article 8 of the SCM Agreement (1)and on the proposal suggesting the extension of article XX of the GATT to the SCM Agreement (2).

1. Towards the reinstating of Article 8 of the SCM Agreement

A possible way to solve the uncertainties created by renewable energy subsidy consists in the reintroduction of the specific exemption for non-actionable subsidies existent under article 8 of the SCM Agreement, expired at the end of 1999^[27].

The provision gave a right of exemption from countervailing measures in the areas of 1) research and development; 2) regional development 3) environmental programs^[28]. In particular, safe harbor for the latter category, applied if : (i) is a one-time non-recurring measure; (ii) is limited to 20% of the cost of adaptation; (iii) does not cover the cost of replacing and operating the assisted investment, which must be fully borne by firms; (iv) is directly linked to and proportionate to a firm’s planned reduction of nuisances and pollution, and does not cover any manufacturing cost savings which may be achieved; and (v) is available to all firms which can adopt the new equipment and/or production processes^[29]. The advantage of such proposal is not only to fix the lack of clarity in the WTO jurisprudence, as evident from reading the Canada – Renewable Energy decision, but also to provide a solution for the absence of a specific exemption for renewable energy subsidies.

However some critics were addressed towards the reinstating of Article 8.2 (c ). Firstly, only a small part of renewable energy goods and services would comply with the eligibility criteria. Secondly there would be an inherent incompatibility between the need to define a specific exemption for renewable energy subsidies and the fifth condition of non-specificity under article 8.2 (c)^[30].  Furthermore, the burdensome procedure of notification, ex anteand ex post, under article 8 would disincentivize the choice of such an exception. As Professor Shadikhodjaev states: “since the ‘safe harbor’ under the Article 8provisions was never utilized, the revival of these provisions in their original form would barely help to shield clean energy subsidies today”^[31]

Also, we should consider the political obstacles towards this end. The big challenge here is to get WTO members consensus on the reinstating of SCM Agreement Article 8. This is not easy as showed by its negotiating history, having members different interests. This explains why there was no agreement to renew it: while developed countries were in favor to renew it, developing countries had a different opinion^[32].

1. Towards the extension of GATT Article XX to the SCM Agreement

To analyze the feasibility of the application of article XX to justify renewable energy subsidies it is useful to first give an overview of this provision.

WTO Members have to comply with a number of obligations imposed by the GATT. For instance, Members must not discriminate between domestic and imported “like products”^[33]. In case an environmental measure is inconsistent with one of these substantive provisions, the measure can be justified only if it falls within the terms of GATT Art XX. The applicability of this exception requires a two-tier analysis^[34]. On the one hand, the measure must satisfy the terms of at least one paragraph of Art XX. The relevant paragraphs, in the context of our topic, are paragraphs (g) (“relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption”) and (b) (“necessary to protect human, animal or plant life or health”). On the other hand, the measure must satisfy the “chapeau” of Art XX, meaning that the application of the measure must not result in “arbitrary or unjustifiable discrimination between countries where the same conditions prevail” or a “disguised restriction on international”.

The applicability of this provision has been received positively by legal scholars. Rubini has argued that Art. XX could be an acceptable second-best solution in case Members cannot reach an agreement on the reintroduction of non-actionable subsidies in the SCM Agreement^[35]. Similarly, Howse (2010) has affirmed that the application of Art. XX GATT is needed to clarify the distinction between subsidies that distort, and subsidies that address distortions^[36].

For the aim of the presentresearch it is important to focus in particular on two arguments made by academic writings in support of the applicability of GATT Article XX to the Agreement on Subsidies.

The first argument relies on the hierarchy between the various agreements signed within the WTO, based on the principle “lex specialis derogat legi generali”,widely applied by international courts and tribunals and now accepted as a customary principle for the interpretation of treaties^[37]. The GATT regulates trade in goods as a whole and thus acts as a lex generalis, whereas the SCM Agreement, like the TBT, the AoA and the SPS, has a limited and specialized scope thus qualifying as a lex specialis^[38]. Following this reasoning GATT provisions, as lex generalis, always remain applicable when it comes to filling in some gaps.

The second argument relies on the WTO jurisprudence that recently showed an opening towards the application of Article XX outside the border of the GATT^[39]. For instance, the Panel and the Appellate Body, on several occasions, addressed the question of the applicability of Article XX to the Access Protocol of the People’s Republic of China. Finally, in China – Publications and Audiovisual Productsdispute, the Appellate Body has affirmed its applicability^[40]. This ruling is particularly important as it represents an opening of extending the use of GATT rules beyond its specific scope.

Some authors argue that we cannot extent the application of article XX only relying on this decision as there are many substantial differences between the Chinese Protocol and an agreement such as the SCM Agreement. For instance, in the Protocol we find a general introductory clause of Article 5, according to which its provisions apply ‘without prejudice to China’s right to regulate trade consistently with the WTO Agreement‘. However, it should be stressed that also in SCM Agreement we find similar terms. As such Article 32.1 of the SCM Agreement states that there are ‘[n]o specific action against a subsidy of another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement’^[41]

However, for some authors extending the application of GATT Article XX to justify a violation under another agreement would require a “heroic approach to interpretation”^[42]. A number of critics have been put forward against such an extension. Firstly, in the text of the SCM Agreement there is no reference to Article XX of the GATT, unlike in the SPS Agreement, where Articles 1 and 2.4 expressly refer to Article XX(b). Furthermore, in the SCM Agreement we do find a reference to another Agreement, the AoA. Hence Article 3 of the SCM Agreement identifies prohibited subsidies “without prejudice to the provisions of the Agreement on Agriculture“. Thus, why we do not find any reference to the Article XX of the GATT?

Finally, it should be borne in mind that the SCM Agreement once had an exception clause, as previously analyzed, and it is precisely the fact that a specific exception existed that applicability of Article XX of the GATT to the SCM Agreement, may be seen as inadequate^[43]. In this sense for some authors the extension of Article XX of the GATT, to justify incentives to renewable energy subsidies, would undermine the “inner balance of the rights and obligations of the SCM Agreement”^[44].

Conclusion

In the presentresearch we highlighted some unresolved issues and tensions that characterize the relation between green energy and WTO law. International trade policies and the need to have clean airare certainly not in harmony. Plus, even though WTO case studies show a progressive evolution towards the protection of interests of a non-strictly commercial nature, such as the environmentitself, the liberalization of international trade still remains the ultimate aim of the Organization. Hence WTO jurisprudence represents only a partial and limited attempt to conciliate the WTO legal system and renewable energy subsidy. Also, the doctrinal proposals described above do not offer exhaustive solutions to this incompatibility. In fact, as showed in the previous paragraphs, both the proposal of extending the application of GATT Article XX to the SCM Agreement and the theory consisting in reinstating SCM Agreement Article 8, arise serious concerns.

To solve the uncertainties created by the interpretation of existent provisions and the WTO jurisprudence the best solution is to create new rules expressly designated to regulate renewable energy subsidies. These should define in a clear way what types of government interventions are legitimate and what are not and at the same time accommodate the existent legal framework in the most convenient way.

However, to build such a framework a strong consensus and knowledge of renewable energy subsidies is needed.  As Professor Espa & Duran argues:“without such a common knowledge on which green policy space is actually at stake, it seems quite unlikely that abstract discussions on reforming the SCM Agreement- even in the name of trade/ climate change mutual supportiveness- will garner traction among the WTO membership, at least at the present juncture”^[45].Whether WTO members will be open to the idea of negotiating specific rules for renewable energy subsidies is still very much debatable and remains to be seen.

^[1]Nicholas Stern, The Economics of Climate Change: The Stern Review(2007)

^[2]Paolo Davide Farah Elena Cima, “World Trade Organization, Renewable Energy Subsidies and the Case of Feed-In Tariffs: Time for Reform Toward Sustainable Development?”In Georgetown International Environmental Law Review (GIELR), Vol. 27, No. 1, 2015

^[3]Cory K., Couture T., Kreycik C., Williams E. (2010), A Policymaker’s Guide to Feed in Tariff Policy Design, National Renewable Energy Laboratory (NREL), U.S. Department of State, p. 6

^[4]Paolo Davide Farah Elena Cima, “World Trade Organization, Renewable Energy Subsidies and the Case of Feed-In Tariffs: Time for Reform Toward Sustainable Development?”In Georgetown International Environmental Law Review (GIELR), Vol. 27, No. 1, 2015

^[5]Aaron Cosbey and Petros C. Mavroidis “A Turquoise Mess: Green Subsidies, Blue Industrial Policy and Renewable Energy: the Case for Redrafting the Subsidies Agreement of the WTO”,EUI Working Paper RSCAS2014/17

^[6]Agreement on Agriculture, Apr.15,1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 410

^[7]United States – Measures Treating Export Restraints as Subsidies (WT/DS 194)

^[8]WTO Appellate Body Report, US—Final Countervailing Duty Determination with Respect to Softwood Lumber from Canada (US-Softwood Lumber IV), WT/DS257/AB/R, adopted on 19 January 2004, para 52.

^[9]Appellate Body Report, United States – Treatment for “Foreign Sales Corporations”, WT/DS108/AB/R (Feb.24.2000).

^[10]United States — Measures Affecting Trade in Large Civil Aircraft — Second Complaint, §806-858, DS353

^[11]United States lead and bismuth II §58; United States-Compensatory measures on certain products from the EC

^[12]Canada – Measures Affecting the Export of Civilian Aircraft (Appellate Body), WT/DS70/Appellate Body/R, 20 August 1999, para. 149

^[13]See Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R (Nov.12, 2000). Appellate Body Report, Philippines – Taxes on Distilled Spirit, WT/DS396/AB/R, WT/DS403/AB/R (Nov.21, 2011).

^[14]Asmelash, H. B. (2015), “Energy subsidies and WTO dispute settlement: Why only renewable energy subsidies are challenged”, Journal of International Economic Law, 18(2), 1–25.

^[15]See Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R (May18, 2011), para. 900.

^[16]See Appellate Body Report, US-Softwood Lumber IV, WT/DS257/AB/R, (Jan.19, 2004)

^[17]Article 2.1(b) of the SCM Agreement

^[18]Panel, US – Cotton, para. 7.1142

^[19]See SCM Agreement, Article 3.1.

^[20]See id., Article 3.2.

^[21]Dominic Coppens, “WTO Disciplines on Subsidies and Countervailing Measures-Balancing Policy Space and Legal Constraints”, (Cambridge: Cambridge University Press, 2014)

^[22]Report of the Appellate Body Canada – Aircraft, § 157.

^[23]Report of the Appellate Body, Canada — Aircraft, §157. Report Panel, Canada — Aircraft Credits and Guarantees, § 7.343; Report Panel, US — FSC (Article 21.5 — EC) §§ 7.278-7.296.

^[24]Appellate Body Report, United States—Final Countervailing Duty Determination with respect to Certain Softwood Lumber from Canada 93, WTO Doc. WT/DS257/AB/R

^[25]Report of the Appellate Body, US – Softwood Lumber IV, § 93.

^[26]Luca Rubini, ‘The Subsidization of Renewable Energy in the WTO: Issues and Perspectives’, NCCR TRADE Working Paper No. 2011/32 (2011), at 6.

^[27]See Ilaria Espa and Gracia Marin Duran, “Renewable Energy Subsidies and WTO Law: Time to Rethink the Case for Reform Beyond Canada – Renewable Energy/Fit Program”

^[28]See the Organization of American States (OAS) Summary Description of the Uruguay Round Marrakesh Agreement Establishing the World Trade Organization Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations; available at:

^[29]Article 8.2 (c ) SCM Agreement.

^[30]S.Z. Bigdeli, ‘Resurrecting the Dead? The Expired Actionable Subsidies and the Lingering Question of “Green Space”’, 8(2) Manchester Journal of International Economic Law 2 (2011);

^[31]Sherzod Shadikhodjaev, “Renewable Energy and Government Support: Time to Green the SCM Agreement”, 14 World Trade Rev. 479 (2015)

^[32]WTO Doc. G/SCM Agreement/M/22 of 17 February 2000.

^[33]General Agreement on Tariffs and Trade, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995), Arts I:1, III:2, III:4 (GATT)

^[34]United States – Standards for Reformulated and Conventional Gasoline, WTO Doc WT/DS2/AB/R, AB-1996-1 (Report of the Appellate Body, 1996) p 22 (US – Gasoline); United States – Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc WT/DS58/AB/R, AB-1998-4 (Report of the Appellate Body, 1998) at [118]-[119] (US – Shrimp).

^[35]L. Rubini, “Ain’t wastin’ time no more: subsidies for renewable energy, the SCM Agreement, policy space and law reform”, Journal of International Economic Law 15(2), 525–579

^[36]Howse, Robert. 2010. “Do the World Trade Organization Disciplines on Domestic Subsidies Make Sense? The Case for Legalizing Some Subsidies”, in Kyle W. Bagwell, George A. Bermann, and Petros C. Mavroidis (eds.), Law and Economics of Contingent Protection in International Trade, Cambridge University Press, New York City, NY. pp. 85-102

^[37]See J. PAUWELYN, “Conflict of Norms in Public International Law – how WTO Law Relates to Other Rules of International Law”, Cambridge University Press, 2003, p. 385. T. GRAEWERT, “Conflicting Laws and Jurisdictions in the Dispute Settlement Process of Regional Trade Agreements and the WTO”, in Contemporary Asia Arbitration Journal, vol. 1(2), 2008, pp. 287-334

^[38]Farah, Paolo Davide & Cima, Elena. ‘WTO and Renewable Energy: Lessons from the Case Law’. Journal of World Trade 49, no. 6 (2015): 1103–1116.

^[39]Ibidem

^[40]Appellate Body Report, China — Publications and Audiovisual Products, WT/DS363/AB/R, §§ 205-233

^[41]Appellate Body Report, China – Raw Materials, above n.145, WorldTradeLaw.net Dispute Settlement Commentary, 6 February 2012, 17.

^[42]Gabrielle Marceau and Joel Trachtman, “The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade”, 36 J. World Trade 811 (2002) at 874.

^[43]L. Rubini, “The subsidization”, p. 35

^[44]L. Rubini, “Ain’t wastin’ time no more: subsidies for renewable energy, the SCM Agreement, policy space and law reform”, Journal of International Economic Law 15(2), 525–579

^[45]Ilaria Espa and Gracia Marin Duran, “Renewable Energy Subsidies and WTO Law: Time to Rethink the Case for Reform Beyond Canada – Renewable Energy/Fit Program”, Journal of International Economic Law, 2018, 21, 621–653