India-US Solar DCR Case: New Delhi Appeals Against Parts of WTO Ruling

India has appealed to the WTO concerning its interpretation of cases presented against the made-in-Washington bonus and Minnesota solar thermal rebate

August 26, 2019


In the ongoing trade dispute going on between India and the United States, New Delhi has decided to challenge specific parts of the ruling given by the Dispute Settlement Body (DSB) of the World Trade Organization (WTO).

As reported previously by Mercom, India had won the case against the U.S.  However, India has now decided to challenge certain issues covered in the panel’s report or ruling. India has notified the DSB of its decision to appeal to the appellate body concerning the issues of law and legal interpretation covered in the panel report entitled United States  – Certain Measures Relating to the Renewable Energy Sector.

In the most recent development in the case, the Indian delegation has issued an appeal with respect to two matters:

  • It stated that the WTO panel erred in holding that the “made-in-Washington” bonus did not fall within the terms of reference. Specifically, the panel failed to make an objective assessment of the matter before it and to make appropriate findings to assist the DSB in making relevant recommendations as required under Article 11 of the DSU. Additionally, by ruling that the “made-in-Washington” bonus was a distinct measure, the panel effectively ruled that it was not a matter before it requiring examination and that’s where the panel has erred.
  • New Delhi has also appealed that the panel erred in holding that India was not able to make a prima facie case for the “Minnesota solar thermal rebate.” According to India, the panel failed to make an objective assessment of the matter. India has further requested the appellate body to complete the legal analysis and to find that the Minnesota solar thermal rebate is inconsistent with the US’ obligations and make appropriate recommendations to the DSB. “The panel erred in holding that India did not make a prima facie case that the Minnesota solar thermal rebate under measure 10 had ongoing effects, and therefore, constituted a matter before the panel that required an examination to provide a positive solution to the dispute,” India’s statement added.

India has maintained that the U.S. has had its own domestic content requirement provisions in the states of Washington, California, Montana, Massachusetts, Connecticut, Michigan, Delaware, and Minnesota. These were the eight states providing subsidies. Recently, the WTO ruled against the U.S. after the panel found that all the measures at issue were inconsistent with the provisions of the General Agreement on Tariffs and Trade (GATT) because they provide an advantage for the use of domestic products, which amounts to less favorable treatment for similar imported products.

Subsequently, the U.S. delegation had filed an appeal against the WTO’s order. The U.S. says that certain issues of law covered in the WTO’s report and specific legal interpretations by the panel are based on an erroneous interpretation.

However, India should be extremely careful how far it wants to push this case. The results of this case are inconsequential as solar trade between the two countries is negligible. But, recently, India has started to require made in India panels for various programs even when the government is not the actual procurer of solar power.