Renewable Energy Subsidies and WTO Law: Time to Rethink the Case for Reform Beyond Canada – Renewable Energy/Fit Program

Espa, Ilaria; Marín Durán, Gracia (2018). Renewable Energy Subsidies and WTO Law: Time to Rethink the Case for Reform Beyond Canada – Renewable Energy/Fit Program. Journal of international economic law, 21(3), pp. 621-653. Oxford University Press 10.1093/jiel/jgy031

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Since the Canada – Renewable Energy/FIT Program (2013) dispute at the World Trade Organization (WTO), it has become almost conventional wisdom in the scholarship that a clash exists between international climate change mitigation goals and WTO law, with a growing consensus (if not anxiety) that WTO subsidy rules ought to be reformed in order to safeguard ‘policy space’ for government support to renewable energy. It is contended here that, in several ways, such a call for reform has been misconceived and needs to be recalibrated. This is mainly because the case for reform has been seldom evaluated in light of State practice beyond that particular WTO dispute, nor informed by an in-depth assessment of how different clean energy subsidies will fare under existing WTO subsidy disciplines. Our aim here is to fill this gap in the existing literature. In particular, our analysis shows that the main problem is neither feed-in tariffs per se, nor the multilateral disputes that have been brought before the WTO dispute settlement bodies. For this reason, we argue that the applicability of Article XX GATT to the Agreement on Subsidies and Countervailing Measures (SCM Agreement), which has been often suggested in academic writings, is not the solution towards ensuring greater supportiveness between international trade and climate change regimes. In fact, such an avenue will provide no legal shelter for those climate friendly energy subsidies that have actually been at a higher risk under current WTO rules (i.e. through unilateral remedial action). Conversely, the other common proposal of introducing a specific exemption into the SCM Agreement for certain ‘good’ renewable energy subsidies appears most effective from a mutual supportiveness perspective, but faces considerable political and practical hurdles at the present junction.

Item Type:

Journal Article (Original Article)

Division/Institute:

02 Faculty of Law > Department of Economic Law > World Trade Institute
10 Strategic Research Centers > World Trade Institute

UniBE Contributor:

Espa, Ilaria

Subjects:

300 Social sciences, sociology & anthropology > 340 Law
300 Social sciences, sociology & anthropology > 380 Commerce, communications & transportation

ISSN:

1369-3034

Publisher:

Oxford University Press

Language:

English

Submitter:

Rebecca Anne Gilgen

Date Deposited:

06 Nov 2018 15:17

Last Modified:

04 Nov 2019 21:38

Publisher DOI:

10.1093/jiel/jgy031

Related URLs:

BORIS DOI:

10.7892/boris.120657

URI:

https://boris.unibe.ch/id/eprint/120657

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