WT/DS579/R/Add.1  
WT/DS580/R/Add.1  
WT/DS581/R/Add.1  
 
14 December  2021 
(21-8041) Page: 1/161 
  Original: English  
 
  
INDIA – MEASURES CONCERNING SUGAR AND SUGARCANE   
 
REPORTS OF THE PANELS  
Addendum  
 
 
This addendum  contains Annexes A to E to the Report s of the Panel s to be found in documents  
WT/DS579/R, WT/DS580/R, and WT/DS581/R . 
 
 
_______________  
 
 
 
 
 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  5 
Annex  A-2 Additional Working Procedures for the Panel's First Substantive Meeting to be 
Held by Remote Means  13 
Annex  A-3 Additional Working Procedures for the Panel's Second Substantive Meeting to 
be Held by Remote Means  15 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Brazil  18 
Annex  B-2 Integrated executive summary of the arguments of Australia  37 
Annex B -3 Integrated executive summary of the arguments of Guatemala  59 
Annex B -4 Integrated executive summary of the arguments of India  83 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Canada  104 
Annex  C-2 Integrated executive summary of the arguments of China  108 
Annex  C-3 Integrated executive summary of the arguments of Costa Rica  110 
Annex  C-4 Integrated executive summary of the arguments of El Salvador  113 
Annex  C-5 Integrated executive summary of the arguments of the European Union  116 
Annex  C-6 Integrated executive summary of the arguments of Japan  119 
Annex  C-7 Integrated executive summary of the arguments of the United States  122 
ANNEX  D 
COMMUNICATIONS BY THE PANEL REGARDING THE FIRST SUBSTANTIVE MEETING  
Contents  Page  
Annex D -1 Panel's communication to the parties conveying its decision to hold two 
substantive meetings, with the first substantive meeting to be held in a 
"hybrid" format, as well as proposing the dates, and the adoption of draft 
additional working procedures, for the first substantive meeting, dated 16 
October 2020  128 
Annex D -2 Panel's communica tion to the parties conveying its decision regarding the 
format and the conduct of the first substantive meeting and adopting the 
Additional Working Procedures for the Panel's First Substantive Meeting to be 
Held by Remote Means, dated 2 November 2020  
 130 
Annex D -3 Panel's communication to the parties addressing India's confidentiality queries 
and request for postponement of the first substantive meeting, dated 
6 November  2020 133 
Annex D -4 Panel's communication to the parties and third parties regarding the 
postponement of the first substantive meeting, dated 18 November 2020  135 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX E  
PRELIMINARY RULING  
Contents  Page  
Annex E -1 Preliminary Ruling by the Panel concerning India's allegedly expired 
measures  dated  9 November 2020  138 
Annex E -2 Preliminary Ruling by the Panel concerning India's Marketing and 
Transportation Scheme  149 
 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  5 
Annex  A-2 Additional Working Procedures for the Panel's First Substantive Meeting to be 
Held by Remote Means  13 
Annex  A-3 Additional Working Procedures for the Panel's Second Substantive Meeting to 
be Held by Remote Means  15 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL1 
 
Adopted on 5 December 2019  
 
General  
 
1. (1) In these proceedings, 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) Pursuant to Article 9.3 of the DSU, the timetables in DS579, DS580, and DS581 are 
harmonized. The Panel shall, to the greatest possible extent, conduct a single panel process, 
with a single record, resulting in separate reports contained in a single d ocument, taking into 
account the rights of all Members concerned and in such a manner that the rights that parties 
or third parties would otherwise have enjoyed are in no way impaired.  
(3) The Panel reserves the right to modify these procedures as necessar y, 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 confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
(3) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties. Any request for 
additional confidentiality procedures shall be made at the earliest possible opportunity, and 
no later than 10  working days prior to the submission of any information that the requesting 
party would seek to designate as confidential pursuant to such additional confidentiality 
procedures.  
Submissions  
3. (1) Before the first substantive meeting of the Panel with the  parties, 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, before the second substantive meeting  of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Subject to the ordinary rules concerning burden of proof, a party wishing to incorporate 
by reference or rely upon arguments and/or evidence submitted by another party or third 
party may do so provided that it clearly identifies the specific arguments and/or evidence it 
refers to and their source.  
(4) If India wishes to file a single version of any written communication to the Panel, 
including written submissions, any preliminary submissions and written answers to questions, 
 
1 The Panels established in DS 579, DS580, and DS581 are referred to collectively in these Working 
Procedures as "the Panel".  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  for more or all of the three disputes, it may do so provided that it clearly identifies whether 
arguments and/or evidence pertain to one, more, or all of the three disputes.  
(5) Each third party  that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel. Each third party is encouraged to submit a single submission, clearly identifyi ng the 
dispute(s) to which its views relate.  
(6) In the interest of full transparency and harmonization of the timetable in DS579, DS580, 
and DS581, a complainant's first written submission in one dispute shall be deemed to be an 
exercise of its third -party rights in the other two disputes. Arguments presented as a third 
party only shall be clearly identified as such in the complainant's first written submission.  
(7) The Panel may invite the parties or third parties to make  additional submissions du ring 
the proceedings, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
(8) In the interest of full transparency and harmonization of the timetable in DS579, DS580, 
and DS581, each party shall make its written  communications to the Panel, including written 
submissions, any preliminary submissions and written answers to questions available to the 
parties in the other disputes at the time that they are submitted to the Panel.  
Preliminary rulings  
4. (1) If India c onsiders that the Panel should make a ruling before the issuance of the Reports 
that certain measures or claims in one or more of the panel requests or one or more of the 
complainants' first written submissions are not properly before the Panel, the follow ing 
procedure applies. Exceptions to this procedure shall be granted upon a showing of good 
cause.  
a. India shall submit any such request for a preliminary ruling at the earliest possible 
opportunity and in any event no later than in its first written submiss ion to the Panel. The 
complainant or complainants shall respond to the request before the first substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised  in such a preliminary ruling 
request before, during or after the first substantive meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Reports to the 
parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Reports, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Reports.  
d. Any request for such a preliminary ruling by India before the first meeting, and any 
subsequent submissions of the parties in relation thereto before the first meeting, shall be 
served on all third parties. The Panel may provide all third parties with an opportunity to 
provide comments on any such request, either in their submissions as provided for in the 
timetable or separately. Any preliminary ruling issued by the Panel before the first 
substantive meeting on whether certain measures or claims are properly before the Panel 
shall be shared with all third parties.  
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminary or procedural rulings during the proceedings, and to the procedures that the Panel 
may follow with respect to such requests.  
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   WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  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 parties an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original languag e 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 
reasonab le 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 meeting (whichever occurs earlie r) following 
the submission which contains the translation in question. Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the disputes  and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the disputes, indicating the submitting Member and the number of each exhibit on 
its cover page. Exhibits submitted by Braz il should be numbered BRA -1, BRA -2, etc. Exhibits 
submitted by Australia should be numbered AUS -1, AUS -2, etc. Exhibits submitted by 
Guatemala should be numbered GTM -1, GTM -2, etc. Exhibits submitted by India should be 
numbered IND -1, IND -2, etc. If, for i nstance, the last exhibit in connection with the first 
submission was numbered BRA -5, the first exhibit in connection with the next submission thus 
would be numbered BRA -6. If a party withdraws an exhibit or leaves one or more exhibits 
intentionally blank,  it should indicate this on the cover page that provides the number of the 
blank exhibit.  
(2) To avoid duplication of exhibits, the parties may submit joint exhibits by numbering them 
accordingly, for example as JE -1, JE-2, etc. Each party may also cross -refer to an exhibit 
submitted by another party by using the number attributed to the exhibit by the party who 
initially submitted it.  
(3) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, o ral statements, and responses to questions.  
(4) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  
(5) If a party includes a hyperlink to the content o f a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit along with an indication of the date at which it was accessed.  
(6) Any publicly a vailable WTO document that is relied on by either party need not be 
submitted as an exhibit, provided that the party indicates the document's official 
WTO document symbol. Such publicly available WTO documents shall be deemed to form part 
of the official r ecord.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.  
b. In the interest of full transparency and harmonization of the timetable in DS579, DS580, 
and DS581, the Panel shall make any written questions it sends to one or more parties in any 
of the disputes available to the p arties in the other disputes at the same time.  
c. The Panel may put questions to the parties and third parties orally during 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.  
11. In the interest of full transparency and harmonization of the timetable in DS579, DS580, and 
DS581, the parties agree that the substantive meetings referred to in paragraphs 15 and 16 shall 
take place in the presence of t he parties to all three disputes.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility for all members of its delegation and shall 
ensure that each mem ber of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceedings and the 
submissions of the parties and third parties.  
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 before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the org anizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite each complainant to make an opening statement to pr esent its 
case first, in the order in which the disputes were filed. Subsequently, the Panel shall invite 
India 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 provisi onal written version of its statement. If 
interpretation is needed, each party shall provide additional copies for the interpreters before 
taking the floor.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
complainant  is invited to limit the duration of its opening statement to not more than 60 
minutes and India is invited to limit the duration of its opening statement to not more than 
90 minutes. If either party considers that it requires more time for its opening sta tement, it 
should inform the Panel and the other party at least 10 days before the meeting, together 
with an estimate of the expected duration of its statement. The Panel will accord equal time 
to the other parties.  
c. After the conclusion of the opening s tatements, the Panel shall give each party the 
opportunity to make comments or ask the other parties questions. Each complainant should 
endeavour to make comments or ask the other parties questions concerning only matters 
raised in its own dispute. India s hould endeavour to make comments on a complainant's 
statement or ask a complainant questions concerning only matters raised in the dispute 
brought by that complainant.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  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 the complainants presenting their statements first, in 
the order in which the disputes were filed. 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 send in writing, within the timeframe  established by the Panel before 
the end of the meeting, any questions to the other parties to which it wishes to receive 
a response in writing.  
iii. The Panel shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, a ny 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 
before the e nd of the meeting.  
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 India shall be given the 
opportunity to present its opening statement fir st. If India chooses not to avail itself of that right, it 
shall inform the Panel and the other parties no later than 5.00 pm (Geneva time) three working days 
before the meeting. In that case, the complainants shall present their opening statements first, in 
the order in which the disputes were filed, followed by India. The party or parties that presented the 
opening statement(s) first shall present the closing statement(s) first.  
Third -party session  
17. Each third party may present its views orally during a session of the first substantive meeting 
with the parties set aside for that purpose.  
18. 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 dele gation, in advance of this session 
and no later than 5.00  p.m. (Geneva time) three working days before the third -party session of the 
meeting with the Panel.  
19. (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 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 conf identiality of the proceedings and the 
submissions of the parties and third parties.  
20. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the Working Procedures and timetable for th e proceedings, to 
allow sufficient time to ensure availability of interpreters.  
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.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  b. The Panel shall first hear th e oral statements of the third parties, who shall speak in 
alphabetical order. Each third party making an oral statement at the third -party session 
shall provide the Panel and other participants with a provisional written version of its 
statement before it  takes the floor. If interpretation of a third party's oral statement is 
needed, that third party shall provide additional copies for the interpreters before taking 
the floor.  
c. Each third party should limit the duration of its statement to 15 minutes, an d avoid 
repetition of the arguments already in its submission. If a third party considers that it 
requires more time for its oral statement, it should inform the Panel and the parties at 
least 10 days before the meeting, together with an estimate of the ex pected duration 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 clarifi cation 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 stateme nt, no later 
than 5.00  p.m. (Geneva time) on the first working day following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to one or more third parties to w hich it 
wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to one or more third 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, within a timeframe established by the Panel before 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 Reports shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the Reports. These executive s ummaries 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 an integrated executive summary summarizing the facts and 
arguments as presented to  the Panel in its written submissions and oral statements, and may also 
include a summary of its responses to the questions following each meeting with the Panel. The 
timing of the submission of this integrated executive summary shall be indicated in the t imetable 
adopted by the Panel.  
24. The integrated executive summary shall be limited to 30 pages for the complainants and 40 
pages for India.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments pres ented 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 wi th the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to questions. The executive 
summary to be provided by each third party shall not exceed six  pages. If a third -party submission WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  and/or oral stat ement does not exceed six pages in total, this shall serve as the executive summary 
of that third party's arguments unless that third party submits a separate executive summary or 
otherwise indicates that it does not wish for the submission/statement to se rve as its executive 
summary.  
Interim review  
 
27. Following issuance of the Interim Reports, each party may submit a written request to review 
precise aspects of the Interim Reports and request a further meeting with the Panel, in accordance 
with the timet able adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. Each party may submit written comments on the other parties' written requests for review. 
Such writ ten comments shall be limited to the other parties' written request for review and shall be 
submitted in accordance with the timetable adopted by the Panel.  
Interim and Final Reports  
29. The Interim Reports, as well as the Final Reports before their offici al circulation, shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
30. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceedings:  
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 1 paper copy of its submissions and 1 paper copy 
of its exhibits to the Panel 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. If an exhibit is in a format that is impractical to submit as a paper copy, then 
the party may submit such exhibit in e lectronic format (email or on a CD -ROM, DVD or 
USB key). In this case, the cover page of the exhibit should indicate that the exhibit is 
only available in electronic format.  
c. Each party and third party shall also send an email to the DS Registry, at the same time 
that it submits the paper copies, attaching an electronic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails 
to the Panel shall be addressed to DSRegistry@wto.org, and copied to o ther WTO 
Secretariat staff whose email addresses have been provided to the parties during the 
proceedings. The electronic version submitted to the DS Registry shall constitute the 
official version for the purposes of submission deadlines and the record of the disputes. If 
it is not possible to attach all the exhibits to one email, the submitting party or third party 
shall provide the DS Registry with four copies of the exhibits on USB keys, CD -ROMs or 
DVDs.  
d. In addition, each party and third party is invited to submit all documents through the WTO 
e-filing system within 24 hours following the deadline for the submission of the paper 
versions. If the parties or third parties have any questions or technical difficulties relating 
to the e -filing system, t hey are invited to contact the DS Registry at DSRegistry@wto.org.  
e. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive 
meeting wi th the Panel directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly 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 
other electronic format acceptable to the recipient without having to serve a paper copy, 
unless the recipient party or third party has requested a paper copy at least five working 
days before their filing. Each party and third party shall confirm, in writ ing, that copies WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  have been served on the parties and third parties, as appropriate, at the time it provides 
each document to the Panel.  
f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other parties (and  third parties if appropriate) by 5.00  p.m. (Geneva time) 
on the due dates established by the Panel.  
g.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the partie s by email, the Panel shall 
provide the parties with paper copies of the Interim Reports and the Final Reports.  
Correction of clerical errors in submissions  
 
31. The Panel may grant leave to a party or third party to correct 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 question.  
 
 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX  A-2 
ADDITIONAL WORKING PROCEDURES FOR THE PANEL'S FIRST SUBSTANTIVE MEETING TO BE 
HELD BY REMOTE MEANS  
Adopted on 2 November 2020  
 
General  
1. These Additional Working Procedures describe the manner in which the Panel's first substantive 
meeting with the parties and third parties will be held by remote means.  
2. The format of the first substantive meeting is without prejudice to how the Panel decides to 
conduct its second s ubstantive meeting with the parties.  
Definitions  
3. For the purposes of these Additional Working Procedures:  
"Participant"  means any registered person attending the meeting with the Panel by remote 
means.  
"Platform"  means the software or system through which participants attend the meeting with 
the Panel.  
"Host"  means the designated person within the WTO Secretariat responsible for the 
management of the platform.  
Equipment and technical requirements  
4. Each party and th ird party shall ensure that all participants of its delegation join the meeting 
using the designated platform, and meet the minimum equipment and technical requirements 
set out by the platform provider for the effective conduct of the meeting.  
Technical s upport  
5. (1) Each party and third party shall be responsible for providing technical support to the 
participants of its delegation.  
(2) The host will assist participants in accessing and using the platform in preparation of, and 
during, the meeting with the Panel.  
Pre-meeting  
Registration  
6. Each party and third party shall provide  to the Panel  the list of the members of its delegation, 
on a dedicated form to be provided by the WTO Secretariat, no later than 5:00 p.m. (Geneva 
time) 10 working days before the  meeting with the Panel. When submitting their lists, third 
parties shall also indicate whether they intend to make an oral statement at the meeting.  
Advance testing  
7. Before the meeting with the Panel, the WTO Secretariat will hold two testing sessions: (i)  an 
individual test with the participants of each party and third party; and (ii) a joint test with all 
participants in the meeting and the panelists. Such testing sessions will seek to reflect, as far as 
possible, the conditions of the meeting.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  Confidenti ality and security  
8. The meeting shall be confidential.  
9. The participants shall connect to the virtual meeting room through a secure internet connection 
and shall avoid the use of an open or public internet connection.  
10. The parties and third parties are strict ly prohibited from recording, via audio, video or 
screenshot, the meeting or any part thereof.  
11. All participants shall follow the confidentiality and security rules contained in these Additional 
Working Procedures as well as any additional security guidance  that may be provided by the 
host. 
Conduct of the meeting  
Access to the virtual meeting room  
12. (1) The host will invite participants via email to join the virtual meeting room on the platform.  
(2) For security reasons, access to the virtual meeting room will be password -protected and 
limited to registered participants.  
(3) Each party and third par ty shall ensure that only registered participants from its delegation 
join the virtual meeting room and that the meeting link or password is not forwarded to, or 
shared with, others.  
Advance log -on 
13. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled start 
time of each session of the meeting with the Panel.  
(2) All participants shall log on to the platform at least 30 minutes in advance of the scheduled 
start time of each session of the meeting with the Panel.  
Docume nt sharing  
14. (1) Each party and third party shall provide the Panel  and other participants with a provisional 
written version of its opening statement, and its closing statement, if available, 20 minutes 
before delivery at the meeting.  
(2) Any participant wi shing to share a document with the Panel and other participants during 
the meeting shall do so before first referring to such document at the meeting.  
Technical problems  
15. (1) Each party and third party shall designate a contact person who can liaise with th e host 
during the course of the meeting to report any technical problems that arise with respect to the 
platform. The host can be contacted via the platform, by sending an email to 
leslie.stephenson@wto.org, or by calling +41 (0)22 739 6148.  
(2) The Panel will pause the meeting until the technical problem is resolved, unless the affected 
party or third party agrees that the meeting can proceed without the problem being resolved.  
Relation with the Working Procedures of the Panel  
16. These Additional Working Proc edures complement the Working Procedures of the Panel, adopted 
on 5 December 2019, and prevail over the latter to the extent of any conflict.  
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX  A-3 
ADDITIONAL WORKING PROCEDURES FOR THE PANEL'S SECOND SUBSTANTIVE MEETING TO BE 
HELD  BY REMOTE MEANS  
Adopted on 23 February 2021  
 
General  
1. These Additional Working Procedures describe the manner in which the Panel's second 
substantive meeting with the parties will be held by remote means.  
Definitions  
2. For the purposes of these Additional Working Procedures:  
"Participant"  means any registered person attending the meeting with the Panel by remote 
means.  
"Platform"  means the software or system through which participants attend the meeting with 
the Panel.  
"Host"  means the designate d person within the WTO Secretariat responsible for the 
management of the platform.  
Equipment and technical requirements  
3. Each party shall ensure that all participants of its delegation join the meeting using the 
designated platform, and meet the minimum eq uipment and technical requirements set out by 
the platform provider for the effective conduct of the meeting.  
Technical support  
4. (1) Each party shall be responsible for providing technical support to the participants of its 
delegation.  
(2) The host will as sist participants in accessing and using the platform in preparation of, and 
during, the meeting with the Panel.  
Pre-meeting  
Registration  
5. Each party shall provide  to the Panel  the list of the members of its delegation, on a dedicated 
form to be provided by  the WTO Secretariat, no later than 5:00 p.m. (Geneva time) 10 working 
days before the meeting with the Panel.  
Advance testing  
6. Before the meeting with the Panel, the WTO Secretariat will hold two testing sessions: (i) an 
individual test with the participa nts of each party; and (ii) a joint test with all participants in the 
meeting and the panelists. Such testing sessions will seek to detect and resolve any technical 
problems, as well as to reflect, as far as possible, the conditions of the meeting.  
Confide ntiality and security  
7. The meeting shall be confidential.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  8. The participants shall connect to the virtual meeting room through a secure internet connection 
and shall avoid the use of an open or public internet connection.  
9. The parties are strictly prohibited f rom recording, via audio, video or screenshot, the meeting or 
any part thereof.  
10. All participants shall follow the confidentiality and security rules contained in these Additional 
Working Procedures as well as any additional security guidance that may be provided by the 
host. 
Conduct of the meeting  
Access to the virtual meeting room  
11. (1) The host will invite participants via email to join the virtual meeting room on the platform.  
(2) For security reasons, access to the virtual meeting room will be password -protected and 
limited to registered participants.  
(3) Each party shall ensure that only registered participants from its delegation join the virtual 
meeting room and that the meeting link or password is not forwarded to, or shared with, others.  
Advance log -on 
12. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled start 
time of each session of the meeting with the Panel.  
(2) All participants shall log on to the platform at least 30 minutes in advance of the scheduled 
start time of each session of the meeting with the Panel.  
Document sharing  
13. (1) Each pa rty shall provide the Panel  and other participants, via email, with a provisional written 
version of its opening statement, and its closing statement, if available, at least 20 minutes 
before delivery at the meeting.  
(2) Any participant wishing to share a document with the Panel and other participants during 
the meeting shall do so, via email, before first referring to such document at the meeting.  
Technical problems  
14. (1) Each party shall designate a contact person who can liaise with the host during the cou rse 
of the meeting to report any technical problems that arise with respect to the platform. The host 
can be contacted via the platform, by sending an email to leslie.stephenson@wto.org, or by 
calling +41 (0)22 739 6148.  
(2) The Panel will pause the meetin g until the technical problem is resolved, unless the affected 
party agrees that the meeting can proceed without the problem being resolved.  
Relation with the Working Procedures of the Panel  
15. These Additional Working Procedures complement the Working Proced ures of the Panel, adopted 
on 5 December 2019, and prevail over the latter to the extent of any conflict.  
 
_______________  
 
 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Brazil  18 
Annex  B-2 Integrated executive summary of the arguments of Australia  37 
Annex B -3 Integrated executive summary of the arguments of Guatemala  59 
Annex B -4 Integrated executive summary of the arguments of India  83 
 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX B -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL  
I. INTRODUCTION  
1. In this dispute, Brazil challenges India's domestic support for sugarcane and export subsidies 
for sugar as inconsistent with Parts IV and V of the Agreement on Agriculture. Brazil does not 
challenge India's right to support its sugarcane farmers and sugar  industry, where such support is 
provided consistently with its WTO obligations. The measures at issue in this dispute, however, are 
not only WTO -inconsistent, they also harm Brazil's interests as a major producer and exporter of 
sugar.  
2. India's Central  Government annually fixes a so -called "Fair and Remunerative Price" ("FRP"), 
prescribing the minimum purchase price that sugar mills must pay to farmers for any sugarcane 
delivered to the mill. Since its introduction in 2009, the FRP level has more than d oubled. On top of 
the FRP, some of India's State Governments prescribe, through so -called State Advised Prices 
("SAPs"), minimum purchase prices for sugarcane that are even higher than the already -high FRP. 
Additionally, India's Central and State Governmen ts provide direct payments, soft loans and other 
support to sugarcane farmers and sugar mills.  
3. These three sets of measures have resulted in artificially high sugarcane prices in India, a 
70 per cent increase in sugar production, as well as an all -time high sugar stock of 17.58 million 
tons in 2019. To evacuate its ever -increasing domestic sugar stocks, India provides subsidies to 
increase sugar exports, thereby plaguing the world sugar market with its excess production. With 
these three sets of measure s, India had become the world's second largest producer and third largest 
exporter of sugar by the end of the 2018/19 sugar season.  
4. As summarized in Section 0, below, and as set out in its submissions, Brazil has established 
that India's provision of domestic support for sugarcane is inconsistent with the Agreement on 
Agriculture. Under Article 7.2(b) of the Agreement on Agriculture, India's domest ic support must not 
exceed the applicable de minimis level of 10 per cent of the value of production. Yet, India's domestic 
support for sugarcane far exceeds that de minimis level.  
5. Moreover, and as summarized in Section 0, below, and as set out in its submissions, Brazil 
has established that India's export subsidies for sugar are inconsistent with Articles 3.3 and 8 of the 
Agreement on Agric ulture. Under those provisions, India is not entitled to provide the type of export 
subsidies for sugar at issue in these proceedings.  
6. For the most part, India did not dispute, or even agreed with, Brazil's argument and 
evidence. There are no more than  a few instances, in which India has even challenged Brazil's 
arguments and evidence. In each case, Brazil has demonstrated that India's arguments have no 
basis in law or in fact. This includes an unfounded Request for a Preliminary Ruling by the Panel 
(Section 0). As a result, the number of issues that the Panel is called upon to resolve in this dispute 
is narrow. Based on the argument and evidence bef ore it, the Panel must rule in Brazil's favor.  
II. INDIA PROVIDES DOMESTIC SUPPORT FOR SUGARCANE IN A MANNER 
INCONSISTENT WITH ITS OBLIGATIONS UNDER THE AGREEMENT ON AGRICULTURE  
7. Brazil claims that India's domestic support for sugarcane though the FRP,  SAPs and other 
domestic support measures is inconsistent with its domestic support obligations under Part IV of the 
Agreement on Agriculture. Specifically, Brazil has demonstrated that India's domestic support for 
sugarcane far exceeds the permissible 10 per cent de minimis level that applies to India. As a result, 
India's domestic support for sugarcane is inconsistent with Article 7.2(b) of the Agreement on 
Agriculture.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  A. Factual Background on India's Domestic Support to Sugarcane Farmers  
8. India's Central and State Governments each enjoy legislative and executive power to enact 
laws and regulations over matters relating to the sugar industry. As summarized below, in the 
exercise of that authority, they maintain three sets of measures that pr ovide domestic support to 
sugarcane. India has not disputed the factual background on its domestic support measures that are 
at issue in this dispute, as summarized below.  
1. India's Central Government fixes a "Fair and Remunerative Price" for 
sugarcane  
9. Section 3 of the Essential Commodities Act 1955 empowers India's Central Government to 
control the production, supply and distribution of essential commodities, including sugar cane.  In 
exercise of that power, it has adopted the Sugarcane (Control) Order 1 966.  
10. Section 3(1) of the Sugarcane (Control) Order provides that the Central Government may 
fix a fair and remunerative price of sugarcane to be paid by producers of sugar or their agents for 
the sugarcane they purchase. Section 3(2) of the Order requ ires that no person sell or agree to sell 
sugarcane to a producer of sugar or his agent, and that no producer or agent shall purchase or agree 
to purchase sugarcane, at a price lower than the FRP. It further requires that the sugar producer 
(i.e., a sugar mill) or its agent pay sugarcane farmers within 14 days from the date of delivery of 
the sugarcane. Failure to comply with the FRP may result in certain penalties, provided for under 
the Essential Commodities Act 1955.  
11. India's Central Government has fixed the FRP since 2009. Since then, its level has more 
than doubled. Each year, India's Commission for Agricultural Costs and Prices ("CACP"), an entity 
affiliated with India's Ministry of Agriculture and Farmers Welfare, recommends a basi c FRP rate 
linked to a basic sugarcane recovery rate, as well as a premium rate for sugarcane whose recovery 
rate, or quality, exceeds the basic recovery rate. The CACP's recommendation is subject to 
consideration and the approval by India's Central Govern ment Cabinet. Following the Cabinet's 
approval, the Department of Food & Public Distribution ("DFPD") of the Ministry of Consumer Affairs, 
Food & Public Distribution announces the FRP through both an official letter to the "Chief Secretaries 
of All Sugar P roducing States" and the website of the India's Government Press Information Bureau.  
12. Figure 1, below, displays the basic FRP rates announced by the DFPD for each sugar season 
since the 2009/10 sugar season.  
Figure 1 – The FRP at the Basic Recovery Rate for the Sugar Seasons 2009/10 to 2019/20 
(unit: INR per 100 kg)  
 
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  13. Using the FRP for the 2019/2020 sugar s eason, Figure 2, below, illustrates the operation of 
the FRP premium rates for sugarcane whose quality exceeds the basic recovery rate. To that end, it 
shows the minimum FRP that a sugarcane farmer receives f or sugarcane at different recovery rates. 
For the 2019/2020 sugar season, the FRP was fixed at INR 275 per 100 kilograms for a basic recovery 
rate of 10 per cent, subject to a premium of INR 2.75 per 100 kilograms for each 0.1 per cent 
increase in the reco very rate over and above 10 per cent. As shown in Figure 2, sugarcane with a 
recovery rate below 10 per cent would not be penalized, and would receive th e FRP on the basis of 
an assumed 10 per cent recovery rate.  
Figure 2 – The FRP at Different Recovery Rates for the Sugar Season 2019/20 (unit: INR 
per 100 kg)  
 
2. Certain State Governments fix "State Administered Prices" for sugarcane  
14. The Sugarcane (Control) Order 1966 also permits India's State Governments to fix minimum 
sugarcane purchase prices, provided that such prices are higher than the FRP. These State -level 
minimum sugarcane price schemes are called "State Adminis tered Prices". Such SAPs are fixed by 
Bihar, Haryana, Punjab, Tamil Nadu, Uttar Pradesh and Uttarakhand.  
15. The State Governments of Bihar, Haryana, Punjab, Uttar Pradesh, and Uttarkhand set SAP 
rates for different varieties of sugarcane. These SAPs take  the form of specific prices set for, typically, 
three categories of sugarcane comprising specific varieties of sugarcane.  
16. The State Government of Tamil Nadu applied SAPs for the sugar seasons 2014/15, 2015/16 
and 2016/17, using a basic rate linked to  a basic sugarcane recovery rate of 9.5 per cent, and a 
premium rate for sugarcane whose quality exceeds that basic recovery rate. Since the 2017/18 
sugar season, Tamil Nadu operates a mandatory revenue -sharing regime.  
3. India's Central and State Governm ents provide other domestic support 
to further support sugarcane farmers  
17. India's Central and State Governments maintain additional domestic support for sugarcane. 
Brazil has organized these additional programs into three categories.  
18. The first categ ory comprises programs that appear to be designed, and operate, to enable 
sugar mills to pay farmers sugarcane arrears, addressing sugar mills' challenge to pay sugarcane 
farmers the required FRP or SAPs. These programs include:  
• the Central Government's S cheme for Assistance to Sugar Mills for the 2017/18 and 
2018/19 sugar seasons;  
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  • the Central Government's Scheme for Extending Production Subsidy to Sugar Mills for 
the 2015/16 sugar season;  
• the Central Government's Scheme for Creation and Maintenance of Bu ffer Stock 
launched in 2018 and 2019;  
• the Central Government's Scheme for Defraying Expenditure Towards Internal Transport 
for the 2018/19 sugar season (which has as its purpose the reduction of sugarcane 
arrears);  
• the Central Government's Scheme for Pro viding Assistance to Sugar Mills for Expenses 
on Marketing Costs for the 2019/20 sugar season (which has as its purpose the reduction 
of sugarcane arrears);  
• the Central Government's Scheme for Incentive Payments for Marketing and Promotion 
Services for Ra w Sugar 2014 (which has as its purpose the reduction of sugarcane 
arrears);  
• the Central Government's Scheme for Extending Soft Loan to Sugar Mills for the sugar 
seasons 2014/15 and 2018/19;  
• direct payments for sugar mills provided by the State Government of Bihar to pay 
sugarcane farmers  
• a one -time settlement of loans to all coo perative sugar mills by the State Government 
of Haryana ; and  
• soft loans subsidized by certain State Governments.  
The details of these programs are set out in Appendix -A of Brazil's First Written Submission 
("Appendix -A programs").  
19. The second categor y comprises programs that offer additional support to sugarcane farmers 
on top of the support provided by the FRP and SAPs, so that farmers receive benefits beyond the 
FRP or SAPs. These programs include:  
• the foregoing purchase tax of the State Government  of Andhra Pradesh;  
• the provision of a transitional production incentive to sugarcane farmers by the State 
Government of Tamil Nadu; and  
• the provision of direct payments for sugar mills to pay sugarcane farmers an incentive 
price by the State Government of Karnataka.  
The details of these programs are set out in Appendix -B of Brazil's First Written Submission 
("Appendix -B programs").   
B. India Provides Domestic Support for Sugarcane in Excess of the Applicable 10 
Per Cent De Minimis Level  
1. Legal framew ork applicable to Brazil's domestic support claims  
20. Under Part IV of the Agreement on Agriculture, each Member's principal domestic support 
obligations depend on whether its Schedule includes, in Section I of Part IV, a Total Aggregate 
Measurement of Support ("AMS") commitment. Brazil has established, and I ndia does not dispute, 
that India's Schedule does not contain a Total AMS commitment. In these circumstances, 
Article  7.2(b) of the Agreement on Agriculture applies, and requires India not to provide domestic 
support to agricultural producers in excess of the relevant de minimis  level set out in Article 6.4 of 
the Agreement on Agriculture . WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  21. Article 6.4 specifies that, with respect to the provision of product -specific domestic support 
(such as domestic support for sugarcane), the applicable de minimis level for a developing country 
Member (such as India) is 10 per cent of the value of production of the basic agricultural product 
during the relevant year. Consequently, India cannot provide domestic support to its sugarcane 
producers at levels that are in ex cess of 10 per cent of the value of production of sugarcane in any 
given year.1 India agrees.  
22. Pursuant to Article 1(a)(ii) of the Agreement on Agriculture, the level of a Member's domestic 
support "during any year of the implementation period and ther eafter" is assessed through the 
calculation of its Current AMS. That Current AMS must be "calculated in accordance with the 
provisions of Annex 3 of this Agreement and taking into account the constituent data and 
methodology used in the tables of supportin g material incorporated by reference in Part IV of the 
Member's Schedule".  
23. Accordingly, in this dispute, Brazil has calculated India's provision of domestic support for 
sugarcane based on the relevant provisions in Annex 3 of the Agreement on Agricult ure and has 
taken "into account" constituent data and methodology used in the tables of supporting material of 
India's Schedule, where applicable.  
2. India's far exceeds the de minimis level solely through the domestic 
support provided by the market price support under the FRP and SAPs  
24. Paragraph 1 of Annex 3 of the Agreement on Agriculture, for the purpose of applying specific 
AMS calculation rules, categorizes domestic support measures that are not exempted from reduction 
commitments into three categor ies: (i) market price support; (ii) non -exempt direct payments; and 
(iii) other non -exempt policies. Following this initial categorization of non -exempt product -specific 
domestic support measures under paragraph 1, the remainder of Annex 3 sets out calcula tion rules 
applicable to each of the categories of domestic support, including (i) in paragraph 8 for market 
price support; (ii) in paragraphs 10 -12 for non -exempt direct payments; and (iii) in paragraph 13 
for other non -exempt policies.  
a. India provides market price support for sugarcane through the FRP and 
SAPs 
i. Brazil has established that India's FRP and SAPs for sugarcane 
constitute market price support  
25. Brazil has established that the FRP and SAPs constitute "market price support", with in the 
meaning of paragraphs 1 and 8 of Annex 3. Paragraph 8 of Annex 3 provides that "market price 
support shall be calculated using the gap between a fixed external reference price" (or "FERP") "and 
the applied administered price" (or "AAP") "multiplied by the quantity of eligible production" 
(or "QEP").  
26. Thus, "market price support" exists where there is a "gap" between an AAP and the FERP, 
and there are rules for determining the QEP. Since the FERP is "fixed" by historical data pursuant to 
paragraph  9 of Annex 3, Members provide "market price support" when they set an AAP. The term 
"administered price" under paragraph 8 refers to a price that is determined not by market forces but 
by administrative action. As the  panel in China – Agricultural Produce rs noted , an AAP is "the price 
set by the government at which specified entities will purchase certain basic agricultural products".2 
Because the AAP is fixed by the government rather than discovered by market forces, the 
government may need to adopt addi tional measures to balance supply and demand so as to maintain 
 
1 Alternatively, if the Panel were to consider the absence of a Total AMS commitment level in Section I of 
Part IV of India's Schedule to be a z ero entry, Brazil has established that Articles 3.2 and 6.3 of the Agreement 
of Agriculture require India's Current Total AMS not to exceed that zero level. Pursuant to Article 6.4 of the 
Agreement on Agriculture, a Member's Current Total AMS does not incl ude any product -specific or non -product -
specific AMS values that are below or equal to the applicable de minimis  level of support. Therefore, Articles 3.2 
and 6.3 of the Agreement of Agriculture would lead to the same domestic support obligation for India as under 
Article 7.2(b) of the Agreement on Agriculture, i.e., India's provision of domestic support for sugarcane must not 
exceed the applicable 10 per cent de minimis level.  
2 Panel Report, China – Agricultural Producers , para. 7.177.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  the AAP, and to prevent market prices from falling below the AAP, as envisaged by the second 
sentence of paragraph  8. 
27. The FRP and SAPs are market price support within the meaning of paragra phs 1 and 8 of 
Annex 3 of the Agreement on Agriculture, because they are minimum purchase prices set by the 
Central and State Governments of India.  
ii. India erred in arguing that market price support must involve government 
purchases  
28. India argued tha t, because its Governments do not themselves purchase sugarcane and pay 
sugarcane producers the FRP or SAPs, the support delivered through the FRP and SAPs is neither 
market price support, nor any other form of domestic support subject to India's commitmen ts under 
the Agreement on Agriculture. In support of that argument, India asserted that paragraph 2 of 
Annex  3, read together with paragraph 1 of Annex 3, delineates the scope of a Member's domestic 
support commitments by: (i) limiting the provider  of dome stic support to governments or their 
agents; and (ii) confining the form of domestic support only to "subsidies", which, according to India, 
are limited to budgetary outlays and revenue foregone. As Brazil has established, India erred.  
29. First, Brazil has explained that the scope of  measures that are subject to a Member's 
domestic support  commitments under the Agreement on Agriculture is governed by Article 6 of the 
Agreement on Agriculture. Article 6.1 of the Agreement on Agriculture provides that "all [] domestic 
support measures in favor of agricultural producers" are subject to the reduction commitments, 
unless the Member providing the support demonstrates compliance with the criteria for certain 
exemptions set out in in Annex 2 and Articles  6.2 and 6.5 of the Agreement on Agriculture. 
Article  1(h) similarly explained that "all domestic support provided in favour of agricultural 
producers" must be included in the AMS calculations, unless specifically exempt. Similarly, Article 
7.2(a) refers t o "any domestic support measure in favour of agricultural producers" when framing 
the obligation contained therein.  
30. India did not dispute that the FRP and SAPs deliver support in favor of sugarcane farmers. 
Indeed, the FRP and SAPs prevent sugarcane p roducers' revenue per unit of sugarcane from falling 
below a minimum floor price set by the FRP and SAPs. Nor did India argue – let alone demonstrate 
– that the FRP and SAPs  are exempt from its domestic support commitments under  the exemptions 
in Annex 2 a nd Articles 6.2 and 6.5 of the Agreement on Agriculture.  
31. Accordingly, the FRP and SAPs are domestic support measures in favor of sugarcane 
producers that are subject to India's domestic support commitments.  
32. Second , India's argument that paragraph 2 of Annex 3 limits the scope of "market price 
support" to measures that come in the form of a " subsidy " is bereft of textual support. As Brazil has 
established, by its own terms, paragraph 2 applies only if there is a "subsid[y] under paragraph 1". 
Where applicable, it provides that calculation of such "subsidies" "shall include both budgetary 
outlays and revenue foregone by governments or their agents". Neither paragraph 1 nor paragraph 
2 of Annex 3 characterize "market price support" as a "subsidy". Inst ead, "market price support" is 
a form of "domestic support", which is the term used to describe the subject matter and scope of 
the disciplines in Part IV of the Agreement on Agriculture. Had the drafters intended to subject 
"subsidies" to disciplines, the y would have framed the disciplines in Part IV not in terms of "domestic 
support " but in terms of "domestic subsidies ". They did not.  
33. Yet, even assuming, arguendo , that paragraph 2 of Annex 3 were to apply to all three forms 
of "support" under paragrap h 1, including "market price support", it would still not limit the scope 
of "market price support" to schemes involving government purchases, and therewith budgetary 
outlays or revenue foregone, as India argues. Brazil has shown that the term "include" in  paragraph 
2 indicates that what follows – i.e., "both budgetary outlays and revenue foregone by governments 
or their agents" – is a non -exhaustive list that would not preclude the existence of "subsidies" in a 
form other than budgetary outlays or revenue foregone. Moreover, Brazil has shown that, contrary 
to India's argument, the term "both", which immediately follows the term "include" in paragraph 2, 
does not, and cannot, transform a non -exhaustive list into an exhaustive list. Thus, India erred in 
arguing that paragraph 2 limits domestic support measures, including market price support, to those 
that involve either budgetary outlays or revenue foregone.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  34. Third, the ordinary meaning and context of the term "market price support", as well as the 
object  and purpose of the Agreement on Agriculture, are at odds with India's argument that "market 
price support" must involve government purchases.  
35. The term "market price support" appears in paragraphs 1 and 8 of Annex 3. Nothing in the 
legal text of those  provisions limits "market price support" to schemes involving government 
purchases. Indeed, the second sentence of paragraph 8, which concerns the treatment of budgetary 
payments made to maintain the price gap, such as buying -in or storage costs, does not  limit such 
buying -in or storage costs to costs incurred by governments.  
36. Turning to relevant context, Annex 4 of the Agreement on Agriculture clarifies that the term 
"market price support" is "defined in Annex 3",3 and has the same meaning under Anne x 4 as it has 
under Annex 3. Annex 4 then confirms that "market price support" is a form of domestic support 
that covers a broad range of measures that do not necessarily involve government purchases. 
Further relevant context in Annex 2 clarifies that "tra nsfers from consumers" – which occur where 
government measures set prices at a price higher than they otherwise would be – may constitute 
domestic support. Similarly, Article 6.1 confirms that "all [] domestic support measures in favour of 
agricultural pro ducers" are subject to the reduction commitments, without requiring that they 
involve government purchases, or budgetary outlays or revenue foregone. Article 6.2 also confirms 
the broad coverage of domestic support, recognizing that "assistance" may be " direct or indirect " in 
encouraging agricultural and rural development. Thus, the relevant context contradicts India's 
argument that "market price support" must be limited to schemes involving government purchases.  
37. As additional context, Brazil pointed to India's own supporting tables, as incorporated into 
its Schedule, explaining that India's supporting tables are at odds with India's interpretation of the 
term "market price support", and further confirm Brazil's in terpretation. Indeed, in its supporting 
tables, India identified as "market price support" a program that is similar to the FRP for sugarcane. 
That program similarly did not involve government purchases of sugarcane, and instead required 
sugar mills to pay  an AAP. India has been unable to explain why its position in this dispute deviates 
from the correct understanding of the term "market price support" that it applied when putting 
together its supporting tables.  
38. Finally, the object and purpose of the A greement on Agriculture is consistent with Brazil's 
interpretation. The third recital of its Preamble refers to "substantial progressive reductions in 
agricultural support and protection [] resulting in correcting and preventing restrictions and 
distortion s in world agricultural markets". Direct price interventions, such as under the FRP and 
SAPs, raise the price received by producers, which negotiators recognized is one of the most 
distortive forms of domestic support. Excluding from reduction commitments forms of market price 
support, such as the FRP and SAPs, that do not involve government purchases would defeat the 
object and purpose of the Agreement on Agriculture. It would also create, without any textual basis, 
a wide and easily abused loophole in the  disciplines.  
iii. Conclusion  
39. In short, Brazil has established that the FRP and SAPs constitute "market price support". 
Brazil has also refuted India's erroneous arguments that sought to exclude from the domestic 
support disciplines in the Agreement on  Agriculture the domestic support provided to India's 
sugarcane producers by the FRP and SAPs.  
b. India's market price support for sugarcane under the FRP and SAPs results in 
domestic support that far exceeds the applicable de minimis level  
40. Paragraph 8 of Annex 3 sets out the domestic support quantification rules for market price 
support, which India provides through the FRP and SAPs. Paragraph 8 requires that the support be 
calculated on the basis of the following "price gap" formula:  
MPS = (AAP – FERP)*QEP  
 
3 Agreement on Agriculture, Annex 4, paragraph 1.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  41. Brazil applied the "price gap" formula for each State in India growing sugarcane. India did 
not dispute that approach.  
42. Starting with the AAP, Brazil recalls that certain States in India apply the FRP, while others 
apply a higher SA P. For States that apply the FRP, the AAP applicable in a given year is determined 
through that year's FRP at the basic recovery rate and any premium for higher recovery rates. That 
is, the applicable AAP may differ depending on the average recovery rate f or sugarcane. Brazil has 
therefore estimated the AAP for each State using its average recovery rate. For the States that apply 
SAPs, Brazil has adopted an AAP at the rate for the middle category of sugarcane varieties. India 
did not dispute Brazil's approa ch.  
43. The FERP derives from India's supporting tables in G/AG/AGST/IND. Since sugarcane 
recovery rates in India today are higher than the 8.5 per cent applicable when India reported the 
FERP in its supporting tables, Brazil has adjusted the FERP consist ent with paragraph 9 of Annex 3. 
Specifically, Brazil adjusted the FERP for each State to ensure that the FERP was expressed at the 
same sugarcane quality level, or recovery rate, at which the AAP was expressed. Again, India did 
not dispute Brazil's approa ch. 
44. The QEP refers to the amount of production of a product that is fit, or able, to benefit from 
the price support provided through the AAP. The legal framework for the FRP and SAPs does not put 
any limitations on the production of sugarcane that may benefit from the FRP or SAPs. Brazil thus 
used as the annual QEP in each State the entirety of the annual sugarcane production in that State. 
Once again, India did not dispute Brazil's approach.  
45. Using, for each State, the values for the three elements of the "price gap" formula for 
"market price support", Brazil calculated the total annual amount of domestic support provided by 
India through the FRP and SAPs. Comparing that annual amount to India's official annual data for 
the "total value of production " of sugarcane, Brazil calculated that India's provision of domestic 
support through the FRP and SAPs amounts to 115 per cent, 118 per cent, 113 per cent, 108 per 
cent and 105 per cent of the value of production in the sugar seasons 2014/15, 2015/16, 2016/ 17, 
2017/18 and 2018/19, respectively.  
46. Each of these annual values far exceeds the de minimis level of 10 per cent of the value of 
sugarcane production that India is entitled to provide under Article 7.2 of the Agreement on 
Agriculture. Thus, based on  the FRP and SAPs alone, India's domestic support for sugarcane is 
inconsistent Part IV of the Agreement on Agriculture.4  
3. India further exceeds the de minimis  level by providing other non -
exempt product -specific domestic support to sugarcane producers  
47. In addition to market price support, India also provides other domestic support to sugarcane 
farmers through various programs introduced by India's Central an d State Governments. To recall, 
the Appendix -A programs appear to be designed, and operate, to enable sugar mills to pay for 
sugarcane arrears, while the Appendix -B programs provide additional support to sugarcane farmers 
on top of that provided by the FRP  and SAPs.  
48. Each of these programs provides support in favor of sugarcane farmers. India has not 
claimed, let alone demonstrated, that any of these programs is exempted from reduction 
commitments by virtue of Annex 2, or Article 6.2, or Article 6.5. Ac cordingly, these programs 
constitute either non -exempt direct payments or other non -exempt policies, within the meaning of 
paragraph 1 of Annex 3. Consistent with paragraphs 10, 12 and 13 of Annex 3, the level of support 
provided by non -exempt direct payme nts or other non -exempt policies can be calculated using the 
budgetary outlay approach.  
49. However, pursuant to the second sentence of paragraph 8 of Annex 3, budgetary payments 
made to maintain the gap between the AAP and the FERP, such as buying -in or storage costs, shall 
 
4 Brazil has also shown that India's provision of domestic support through the FRP alone far exceeds 10 
percent of the value of India's sugarcane production.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  not be included in the AMS. Since the Appendix -A programs appear to involve payments made to 
maintain the gap between the AAP and the FERP, Brazil does not include them in the AMS calculation.  
50. By contrast, the Appendix -B programs provide support to sugarcane farmers above and 
beyond the market price support provided by the FRP and SAPs. Therefore, they must be included 
in the AMS calculation. Adding the budgetary outlays for the Appendix -B programs, the value of 
India's domestic su pport increases marginally, to 115 per cent, 118 per cent, 113 per cent, 109 per 
cent and 105 per cent of the value of production in the sugar seasons 2014/15, 2015/16, 2016/17, 
2017/18 and 2018/19, respectively. Each of these annual values continues to fa r exceed the de 
minimis level of 10 per cent of the value of sugarcane production that India is entitled to provide 
under Article 7.2.  
51. In light of certain evidentiary difficulties in connection with these programs (not least due to 
India's refusal to answer factual questions on them), and prompted by questions from the Panel, 
Brazil accepted, however, that, if the Panel finds that India's provision of market price support alone 
results in an inconsistency with Article 7.2(b), the Panel may simply categ orize those measures as 
non-exempt domestic support, but need not additionally calculate the support provided by the 
Appendix -B programs.  
52. Brazil has emphasized, however, that not calculating the support provided by the measures 
identified and describe d in Appendix -A and Appendix -B does not mean that India's compliance 
obligations are limited to any particular component of AMS – e.g., market price support. Instead, 
India's compliance obligations with respect to domestic support for sugarcane will concer n the overall 
AMS level provided through market price support, non -exempt direct payments and other non -
exempt policies for sugarcane.  
C. Conclusion  
53. In sum, Brazil has established that India's provision of domestic support through the FRP 
and SAPs alo ne amounts to 115 per cent, 118 per cent, 113 per cent, 108 per cent and 105 per cent 
of the value of production in the sugar seasons 2014/15, 2015/16, 2016/17, 2017/18 and 2018/19, 
respectively, far exceeding the 10 per cent de minimis level. When the oth er support is added, the 
margin by which the total level of support exceeds de minimis levels increases further.  
54. Article 7.2(b) of the Agreement on Agriculture requires India not to provide domestic support 
in excess of the 10 per cent de minimis level. The Panel should therefore find that India violates its 
domestic support commitments under the Agreement on Agriculture.5  
III. INDIA PROVIDES EXPORT SUBSIDIES FOR SUGAR  CONTRARY TO ARTICLES 3.3 AND 
8 OF THE AGREEMENT ON AGRICULTURE  
55. Brazil claims that India provides export subsidies for sugar under six programs:  
i. the Scheme for Assistance to Sugar Mills for the 2018/19 season;  
ii. the Scheme for Creation and Maintenance of Buffer Stock in 2018;  
iii. the Scheme for Creation and Maintenance of Buffer Stock in 2019;  
iv. the Scheme for Assistance to Sugar Mills for the 2017/18 season;  
v. the Scheme for Extending Production Subsidy to Sugar Mills for the 2015/16 season; 
and 
vi. Scheme for P roviding  Assistance to Sugar Mills for Expenses on Marketing Costs 
including  Handling, Upgrading and Other Processing Costs and Costs of International 
 
5 In the alternative, India acts inconsistently w ith Articles 3.2 and 6.3 because it exceeds its nil 
commitment level by providing levels of domestic support for sugarcane in excess of its de minimis  level of 10 
per cent.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  and Internal Transport and Freight Charges on Export of Sugar ( the "MAEQ Scheme") 
for the 2019/20 season.  
56. As summarized below, Brazil has established that each of these measures provides export 
subsidies for sugar under Article 9.1(a) of the Agreement on Agriculture. By providing Article 9.1(a) 
export subsidies for sugar, India acts consistently with Articl es 3.3 and 8 of the Agreement on 
Agriculture.  
A. Factual Background on India's Export Subsidies for Sugar  
57. To recall, India maintains certain subsidies to evacuate surplus sugar production through 
exports. To that end, India maintains an export quota r egime, under which each sugar mill is 
allocated an annual amount of sugar that it must export. To further incentivize sugar mills to fulfill 
their allocated export quota, India conditions their eligibility for various assistance programs upon 
fulfilment of  their export quotas.  
58. For the 2017/18 and 2018/19 sugar seasons, India maintains an export quota regime 
involving "Minimum Indicative Export Quotas" ("MIEQs") that require sugar mills to export an 
allocated amount of sugar. To encourage sugar mills to export the prescribed quan tities for the 
2018/19 sugar season, India conditions the sugar mills' eligibility for the Scheme for Assistance to 
Sugar Mills (2018/19 season) and the Scheme for Creation and Maintenance of Buffer Stock (2018) 
to fulfilment of their MIEQs. Additionally, sugar mills that have exported against the MIEQ for the 
2018/19 season obtain more subsidies under the Scheme for the Creation and Maintenance of Buffer 
Stocks (2019). For the 2015/16 sugar season, a similar export subsidy regime features an export 
quota r egime linked to assistance programs.  
59. For the 2019/20 sugar season, India changed the label of its export quota regime from MIEQ 
to "Maximum Admissible Export Quantity" ("MAEQ"). However, India continues the same basic 
elements that characterize its ex port subsidy regime in the 2018/19 as well as in previous sugar 
seasons. In particular, under the MAEQ Scheme, sugar mills that fulfil their allocated export quota 
are eligible to a lump sum subsidy of, in the 2019/20 sugar season, INR 10,448 for every ton  of 
sugar exported. India also increased the MAEQ export quota to a total of 6 million tons of sugar, a 
20 per cent over the 2018/19 sugar season.  
B. India Provides Article 9.1(a) Export Subsidies Inconsistent with Articles 3.3 
and 8 of the Agreement on A griculture  
1. Legal framework applicable to Brazil's export subsidy claims  
60. Part V of the Agreement on Agriculture and Section II of Part IV of each Member's Schedule 
define a Member's export subsidy commitments for agricultural goods.  
61. Article 1(e)  of the Agreement on Agriculture defines "export subsidies" as "subsidies 
contingent upon export performance, including the export subsidies listed in Article 9". Article 8 
provides that "[e]ach Member undertakes not to provide export subsidies otherwise t han in 
conformity with this Agreement and with the commitments as specified in that Member's Schedule".  
62. "[C]onformity with this Agreement" is assessed for two different types of "export subsidy 
commitments", which Members have undertaken pursuant to A rticle 3.3 of the Agreement on 
Agriculture and Section II of Part IV of their Schedules. For scheduled agricultural products, i.e., 
products "specified in Section II of Part IV" of Member's Schedule, it must not provide export 
subsidies "in excess of the b udgetary outlay and quantity commitment levels specified therein", 
except as permitted under Articles 9.2(b) and 9.4. For unscheduled  agricultural products, i.e., 
products  not specified in Section II of Part IV of a Member's Schedule, it must not provide e xport 
subsidies at all, again except as permitted under Articles 9.2(b) and 9.4. Thus, the manner in which 
compliance with a Member's export subsidy obligations is assessed depends on whether Section II 
of Part IV of its Schedule specifies, for the product  at issue, the right to provide export subsidies, 
within the limits of the scheduled budgetary outlay and quantity reduction commitments. India does 
not disagree with this legal framework.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  63. Section II of Part IV of India's Schedule does not specify any product for which India has 
scheduled the right to provide, within limits, export subsidies. Thus, consistent with Articles 3.3 and 
8, India can provide export subsidies only to the extent permitted under Article 9.2(b) and Article 
9.4. Brazil has explaine d that Article 9.2(b) is no longer applicable. Brazil has also explained that, 
during the "implementation period" , Article 9.4 allows developing country Members, such as India, 
to provide export subsidies for (i) the "costs of marketing" or the "costs of i nternational transport 
and freight" (Article 9.1(d)) or (ii) through internal transport subsidies (Article 9.1(e)). Thus, 
consistent with Articles 3.3 and 8, India is not permitted to provide export subsidies for sugar falling 
under Article 9.1(a). Again, India does not disagree with this part of the legal framework.  
64. India has invoked, only with respect to the MAEQ Scheme, Article 9.4 (asserting that it falls 
within Articles. 9.1(d) and (e) and that the "implementation period" continues). As summarized 
below (Section 0), Brazil has established that the export subsidies under the MAEQ Scheme fall 
under Article 9.1(a). Since India was unable to show that the MAEQ Scheme falls under Article  9.1(d) 
or (e), Brazil does not consider it necessary for the Panel to resolve the question wh ether Article 9.4 
continues to apply today.  
2. India provides export subsidies within the meaning of Article 9.1(a) of 
the Agreement on Agriculture  
 
65. As summarized below, Brazil has established that India is providing Article 9.1(a) export 
subsidies fo r sugar, in violation of Article 3.3 and 8 of the Agreement on Agriculture.  
a. Export subsidies within the meaning of Article 9.1(a) of the Agreement on 
Agriculture  
66. Article 9.1(a) refers to "the provision by governments or their agencies of direct subs idies, 
including payments -in-kind, to a firm, to an industry, to producers of an agricultural product, to a 
cooperative or other association of such producers, or to a marketing board, contingent on export 
performance ".6 To assess whether a measure constitutes an export subsidy, within the meaning of 
Article 9.1(a), it must involve "direct subsidies" that are "contingent on export performance", and it 
must feature relevant grantors and relevant recipients. India does not disagree.  
67. The Agreement on Agriculture does not define the term "subsidy" or "direct subsidies". 
Previous panels and the Appellate Body have found that the subsidy definition under the 
SCM Agreement is "highly relevant context for the interpretation of  the word ‘subsidy' within the 
meaning of the Agreement on Agriculture".7 Consistently with the SCM Agreement definition, the 
Appellate Body explained that a "subsidy", within the meaning of Article 9.1(a) of the Agreement on 
Agriculture, "involves a tran sfer of economic resources from the grantor to the recipient for less than 
full consideration".8  
68. The term "direct" denotes a relationship between a subsidy grantor and the recipient. 
Indeed, the remainder of Article 9.1(a) identifies specific entitie s as relevant grantors and recipients. 
The relevant granting authorities are either "governments or their agencies", and the relevant 
recipients are "producers of an agricultural product, a cooperative or other association of such 
producers", or "a marketi ng board". India agrees.  
69. Thus, "direct subsidies", within the meaning of Article 9.1(a), include the transfer of 
economic resources from "governments or their agencies" to "producers of an agricultural product, 
a cooperative or other association of suc h producers", or "a marketing board". Such transfer of 
economic resources must be for less than full consideration.  
70. The terms "contingent on export performance" or "contingent upon export performance" 
appear in Articles 1(e) and 9.1(a) of the Agreemen t on Agriculture, and Article 3.1(a) of the 
SCM Agreement. The Appellate Body clarified that there is no reason to read the requirement of 
export contingency differently in the SCM Agreement and in the Agreement on Agriculture. Thus, 
export contingency und er Article 9.1(a) of the Agreement on Agriculture requires a "relationship of 
 
6 Emphasis added.  
7 Panel Report, US – FSC, para. 7.150. See also  Appellate Body Re port, US – Upland Cotton , para. 571.  
8 Appellate Body Report, Canada – Dairy , para. 87.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  conditionality or dependence", or a "tie" between the granting of the subsidy and actual or 
anticipated exportation.9 Once again, India agrees.  
b. The challenged measures consti tute export subsidies, within the meaning 
of Article 9.1(a) of the Agreement on Agriculture  
71. India did not generally dispute the arguments and evidence provided by Brazil in applying 
the legal standard to the facts of the measures at issue, as summarize d below. Indeed, India 
accepted that each of the measures is consistent upon export performance. India argued instead 
that (i) Brazil had allegedly failed to provide evidence of actual payments for all of the export 
subsidies at issue, and (ii), in the alt ernative, that the MAEQ Scheme is allegedly an export subsidy 
under Article 9.1(d) or (e) that is covered by Article 9.4. Brazil explains that India erred with both 
arguments in Sections 0 and 0, further below.  
i. Scheme for Assistance to Sugar Mills for the 2018/19 season  
72. Brazil has established that India provides, under the Scheme for Assistance to Sugar Mills 
for the 2018/19 s ugar season, export subsidies, within the meaning of Article 9.1(a).  
73. Under t he Scheme for Assistance to Sugar Mills for the 2018/19 sugar season, India  provides 
"direct subsidies" to eligible sugar mills in the form of direct payments. Eligible sugar mills receive 
INR 13.88 for every 100 kilograms of sugarcane crushed. For the implementation of this Scheme, 
India made available from the Central Government's budget INR 20 billion in financial year 2019/20, 
and INR 2 billion in financial year 2020/21. Si nce payments under the Scheme are made gratuitously, 
the Scheme provides for a transfer of economic resources from the Central Government to sugar 
mills for less than full consideration, and thus constitutes a "direct subsidy".  
74. The "direct subsidies" under the Scheme are also "contingent on export performance". To 
be eligible for the direct payments, sugar mills must prove that they have complied fully with all 
orders/directives of the DFPD to the sugar mills applicable for the 2018/19 sugar  season. This 
includes the DFPD Order on MIEQ for the 2018/19 season, which requires sugar mills to export their 
allocated MIEQs of sugar before 30 September 2018. Thus, by requiring that sugar mills comply fully 
with the applicable DFPD orders/directives,  the Scheme ties eligibility for the direct subsidy to the 
sugar mills' export performance in fulfilling the MIEQs, making the subsidy under this Scheme export 
contingent.  
ii. Scheme for Creation and Maintenance of Buffer Stock in 2018  
75. Brazil has estab lished that India provides, under the Scheme for Creation and Maintenance 
of Buffer Stock, export subsidies, within the meaning of Article 9.1(a).  
76. Under the Scheme for Creation and Maintenance of Buffer Stock in 2018, India provides 
"direct subsidies" to eligible sugar mills in the form of direct payments. Eligible sugar mills receive 
payments for reimbursement of interest, insurance and storage charges. For the implementation of 
this Scheme, India disbursed from the Central Government's budget INR 2 bi llion in financial year 
2018/19, and made available INR 4.5 billion in financial year 2019/20. Since payments under this 
Scheme are made gratuitously, the Scheme provides for a transfer of economic resources from the 
Central Government to sugar mills for l ess than full consideration, and thus constitutes a "direct 
subsidy".  
77. The "direct subsidies" under the Scheme are also "contingent on the export performance". 
To be eligible for the direct payments, the sugar mills are required to comply fully with all the 
orders/directives issued by the Department of Food & Public Distribution for compliance during the 
2018/19 sugar season. This includes the DFPD orders/directives that require sugar mills to export 
the allocated MIEQs. Thus, by requiring that sugar mills comply fully with the applicable DFPD 
orders/directives, the Scheme ties eligibility for the direct subsidy to the sugar mills' export 
performance in fulfilling the MIEQs, making the subsidy under this Scheme export contingent.  
 
9 Appellate Body Report , US – FSC, paras. 141 -142. See also  Appellate Body Report, US – Upland Cotton , 
paras. 571 -572. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  iii. Scheme for Creati on and Maintenance of Buffer Stock in 2019  
78. Brazil has established that India provides, under the Scheme for Creation and Maintenance 
of Buffer Stock in 2019, export subsidies, within the meaning of Article 9.1(a).  
79. Under the Scheme for Creation and Maintenance of Buffer Stock in 2019, India provides 
"direct subsidies" to eligible sugar mills in the form of direct payments. Eligible sugar mills receive 
payments for reimbursement of interest, insurance and storage charges. For the implementation of 
this Scheme, India made available from the Central Government's budget INR 1 billion in financial 
year 2019/20 and INR 2 billion in financial year 2020/21. Since payments under this Scheme are 
made gratuitously, the Scheme provides for a transfer of economic resources from the Central 
Government to sugar mills for less than full consideration, and thus constitutes a "direct subsidy".  
80. The "direct subsidies" under the Scheme are also "contingent on the export performance". 
Sugar mills that fulfil their expor ted requirements under the MIEQ for the 2018/19 season are 
provided additional payments, compared to those mills that failed to do so. Thus, by enhancing the 
subsidies provided sugar mills that fulfil the requirements under the MIEQ for the 2018/19 season,  
the Scheme ties eligibility for the full amount of direct subsidies to sugar mills' export performance 
in fulfilling the MIEQs, making the subsidy under this Scheme export contingent.  
iv. Scheme  for Assistance to Sugar Mills for the 2017/18 season  
81. Brazil has established that India provides, under the Scheme for Assistance to Sugar Mills 
for the 2017/18 season, export subsidies, within the meaning of Article 9.1(a).  
82. Under the Scheme for Assistance to Sugar Mills for the 2017/18 season, India provid es 
"direct subsidies" to eligible sugar mills in the form of direct payments. Eligible sugar mills receive 
INR 5.5 for every 100 kilograms of sugarcane crushed. For the implementation of this Scheme, India 
disbursed from the Central Government's budget INR  3.76 billion in financial year 2018/19, and 
made available INR 630 million in financial year 2019/20. Since payments under the Scheme are 
made gratuitously, the Scheme provides for a transfer of economic resources from the Central 
Government to sugar mill s for less than full consideration, and thus constitutes a "direct subsidy".  
83. The "direct subsidies" under the Scheme are also "contingent on export performance". By 
requiring that sugar mills have complied fully with the applicable DFPD orders/directiv es, the Scheme 
requires sugar mills to export the allocated MIEQ of sugar within a certain time frame. Thus, by 
requiring that sugar mills comply fully with the applicable DFPD orders/directives, the Scheme ties 
eligibility for the direct subsidy to the su gar mills' export performance in fulfilling the MIEQs, making 
the subsidy under this Scheme export contingent.  
v. Scheme for Extending Production Subsidy to Sugar Mills for the 
2015/16 season  
84. Brazil has established that India provides, under the Scheme  for Extending Production 
Subsidy to Sugar Mills for the 2015/16 sugar season, export subsidies, within the meaning of Article 
9.1(a).  
85. Under the Scheme for Extending Production Subsidy to Sugar Mills for the 2015/16 sugar 
season, India  provides "direct subsidies" to eligible sugar mills in the form of direct payments. 
Eligible sugar mills receive INR 4.5 for every 100 kilograms of sugarcane crushed. For the 
implementation of this Scheme, India disbursed from the Central Government's budget INR 5. 22 
billion in financial year 2016/17 and INR 227.2 million in financial year 2017/18. Since payments 
under this Scheme are made gratuitously, the Scheme provides for a transfer of economic resources 
from the Central Government to sugar mills for less than full consideration, and thus constitutes a 
"direct subsidy".  
86. The "direct subsidies" under the Scheme are also "contingent on export performance". To 
be eligible for the direct payment, the Scheme provides that sugar mills must have achieved at least 
80 per cent of the MIEQ obligations. Thus, b y tying the eligibility for the subsidies under this Scheme 
to the sugar mill's fulfillment of their MIEQ obligations, the Scheme ties eligibility for the direct WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  subsidy to the sugar mills' export performance in fu lfilling the MIEQs, making the subsidy under this 
Scheme export contingent . 
vi. MAEQ Scheme for the 2019/20 season  
87. Brazil has established that India provides, under the MAEQ Scheme for the 2019/20 season, 
export subsidies, within the meaning of Article  9.1(a).  
88. Under the MAEQ Scheme, India provides "direct subsidies" to eligible sugar mills in the form 
of a direct payment. Eligible sugar mills receive a lump sum payment of INR 10,448 for every ton of 
sugar exported. For the implementation of this Sch eme, India made available from the Central 
Government's budget INR 5.5 billion in financial year 2019/20 and INR 2 billion in financial year 
2020/21. Since payments under the MAEQ Scheme are made gratuitously, the Scheme provides a 
transfer of economic res ources from the Government to sugar mills for less than full consideration, 
and thus constitutes a "direct subsidy".  
89. The "direct subsidies" under the MAEQ Scheme are also "contingent on export performance". 
To be eligible for the direct payment,  the su gar mills must fulfill their pre -allocated MAEQ export 
quota. Thus, by tying the eligibility of the subsidy under the MAEQ Scheme to fulfillment of this 
export quota, the Scheme ties eligibility for the direct subsidy to the sugar mills' export performance  
in fulfilling the MAEQ, making the subsidy under this Scheme export contingent.  
c. India has failed to rebut Brazil's argument and evidence demonstrating that the 
six measures at issue constitute Article  9.1(a) export subsidies  
90. As noted, India did n ot engage directly with Brazil's argument and evidence under 
Article  9.1(a) of the Agreement on Agriculture. Instead, India argued that a panel can find export 
subsidies under Article 9.1 of the Agreement on Agriculture only where there is evidence that th e 
government has actually paid a financial contribution. India asserted that Brazil had not met its 
burden to demonstrate the "making" of a financial contribution.  
91. At the outset, Brazil emphasizes that India's argument is moot. This is because, although 
not required to do so, Brazil has in fact placed evidence before the Panel demonstrating actual 
disbursements of funds for each of the export subsidies at issue. Accordingly, even if the Panel were 
to accept India's erroneous legal theory, the unrebutted evidence shows that fund s have actually 
been disbursed under each export subsidy at issue.   
92. Moreover, and contrary to India's argument, neither the Agreement on Agriculture nor the 
SCM Agreement require showing actual disbursement of funds to establish the existence of a 
subsidy. Instead, both permit establishing the existence of a subsidy on the basis of a legal 
instrument that provides for its payment – i.e., based on the evidence from the legal instruments 
providing for the export subsidies, as summarized in the previous s ection.  
93. Article 9.1(a) of the Agreement on Agriculture concerns "the provision" of a direct subsidy 
that is contingent on export performance. The term "provision" refers to the action of making 
available. It does not require evidence of actual disbursements. Inste ad, evidence of a commitment 
to disburse funds, for example from a legal instrument, suffices for there to be the "provision" of a 
subsidy under Article 9.1(a). This conclusion is supported by the context of Article 9.2(a)(i), which 
clarifies that a Member  with an export subsidy reduction commitment may neither allocate  nor incur 
any amount of export subsidy in excess of its commitment level. For Members without an export 
subsidy reduction commitment, such as India, this means that no amount of export subsi dy may be 
allocated, let alone incurred. In short, India's argument regarding the need for evidence of actual 
disbursements fails under the terms of the Agreement on Agriculture.  
94. India also sought to ground its flawed arguments on the definition of a " subsidy" in the 
SCM Agreement. Again, India's argument fails. One way of establishing the existence of an export 
subsidy under Article 9.1(a) of the Agreement on Agriculture may be to demonstrate that the 
measure at issue involves a "financial contribution " listed in Article 1.1(a)(1) of the SCM Agreement 
that confers a "benefit". However, Article 1.1(a)(1)(i) provides that a "financial contribution" exists 
where "a government practice involves" "a direct transfer of funds (e.g. grants, loans, and equity 
infusion), potential direct transfers of funds or liabilities (e.g. loan guarantees)". The examples of WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  relevant forms of "financial contribution" in Article 1.1(a)(1)(i) – in particular, " potential  direct 
transfer of funds"10 – demonstrate that the actual di sbursement of funds is not dispositive of the 
question of whether a "financial contribution" exists. Thus, India's argument regarding the need for 
evidence of actual disbursements also fails under the terms of the SCM Agreement.  
95. Having failed on these arguments, India next asserted that the requirement of actual 
disbursement of funds applies to at least one form of "financial contribution" – namely, a "direct 
transfer of funds" and, in particular, "grants". India focused on the term "transfer" to argue that a 
grant requires showing actual disbursement of funds. Again, India erred.  
96. A commitment to provide a grant itself amounts to a "direct transfer of funds" in the form 
of a "grant". The dictionary meaning of "transfer" is "[t]he action of transferri ng or fact of being 
transferred; conveyance or removal from one place, person, etc., to another; to convey or make 
over (title, right, or property) by deed or legal process".11 It covers both the "action of transferring", 
for example a payment, as well as the existence of a legal process for the transfer of funds, for 
example a commitment to pay. In US – Carbon Steel (India) , the Appellate Body confirmed that the 
term "a direct transfer of funds" in Article 1.1(a)(1)(i) only speaks to the manner  or method  by 
which the funds are conveyed. It does not speak to the timing  of disbursements of the funds, or 
requires evidence of actual disbursements. The Appellate Body further noted that the use of the 
word "involve" preceding the term "a direct transfer o f funds" suggests that "the government 
practice need not consist, or be comprised, solely of the transfer of funds, but may be a broader set 
of conduct in which such a transfer is implicated or included".12 Therefore, a "transfer of funds" can 
be establish ed by evidence of a "government practice" that involves a "legal process", for example 
in the form of a legal instrument that sets out an obligation to pay or a right to receive or retain 
funds. Article 1.1(a)(1)(i) of the SCM Agreement, thus, covers gover nment practices that can 
implicate disbursements of funds, for example, by making available economic resources to be 
transferred to the recipient in the form of a grant.  
97. In addition to being unsupported by the text of the relevant agreements, India's theory 
would also open the door to circumvention of the export subsidies obligations. Where a Member 
adopts annual export subsidy measures, such as India's measures at issue, evidence of actual 
disbursements would only ever become available after payments have been made, such that those 
measures could never be challenged effectively in WTO dispute settlement.   
98. Finally, India also argued that demonstrating a grant confers a "benefit", under Article 1.1(b) 
of the SCM Agreement, required evidence of a mar ket benchmark. Relying on the distortions of 
India's sugar market from the FRP and SAPs, India argued that there can be no reliable market 
benchmark against which to assess whether its grants to sugar mills confer a "benefit". India's 
argument is absurd. T he market at issue is the market for financing, and that market does not 
provide free money. Grants therefore confer a "benefit".  
d. India's alternative argument with respect to only the MAEQ Scheme fails to show 
that the MAEQ Scheme is an Article 9.1(d) o r (e) export subsidy that could be 
covered by Article 9.4  
99. With respect to the MAEQ Scheme only, India developed an alternative argument, 
contending that the MAEQ Scheme falls within the scope of Articles 9.1(d) and (e) of the Agreement 
on Agriculture and, on that basis, is permitted under Article 9.4. India erred.  
100. Regardless of whether Article 9.4 continues to allow developing country Members to provide 
certain Articles 9.1(d) or (e) export subsidies, India has failed to establish that the MAEQ Sc heme 
provides those types of export subsidies. Instead, the weight of the evidence on the record shows 
that the MAEQ Scheme does not involve export subsidies under Articles 9.1(d) or (e).  
 
10 Emphasis added.  
11 Oxford English Dictionary, OE D Online, "transfer v. ", available at: 
https://www.oed.com/view/Entry/204699?rskey=eMKMeQ&result=2&isAdvanced=false#eid, last viewed 18 
March 2021, (Exhibit BRA -3). 
12 Appellate Body Report, US – Carbon Steel (India) , paras. 4.89 -4.90.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  101. India argued, in essence, that because the legal instrument set ting out the MAEQ Scheme 
uses certain language also used in Article 9.1(d) and (e), the export subsidies provided thereunder 
automatically qualify as export subsidies falling under Articles 9.1(d) and (e). However, rather than 
the replicating certain words  in a measure, Articles 9.1(d) and (e) require the existence of qualitative 
and quantitative relationships between the receipt of the subsidy and the incurrence of the types of 
costs or charges listed under Articles 9.1(d) and (e).  
102. Qualitatively, the  term "to reduce" in Article 9.1(d) denotes a rational relationship between 
the subsidy and either the "costs of marketing" or the "costs of international transport and freight". 
For "costs of marketing", only export subsidies that serve to reduce "specifi c types of costs that are 
incurred as part of and during the process of selling a product" can be covered under Article 9.1(d).13 
For an export subsidy to be covered by Article 9.1(e), the legal text is unambiguous that the 
subsidies must take the form of "internal transport and freight charges" that are "more favourable 
than for domestic shipment".  
103. Quantitatively, at a minimum, the subsidy amounts must not exceed the actual costs under 
the relevant cost categories or charges. India agrees.  
104. These  qualitative and quantitative relationships, and the resulting scope of Articles 9.1(d) 
and (e), must be interpreted strictly and narrowly, such that Article 9.4 is not applied in a manner 
that would circumvent reduction commitments.  
105. As noted, the req uired qualitative and quantitative relationships between the subsidy at issue 
and the types of costs or charges listed under Articles 9.1(d) and (e) cannot be established merely 
by replicating the language of these provisions. Instead, they must be reflect ed in the measure 
considered as a whole, including its structure, design and operation. Although not required to do so 
(as it was India that asserted that the MAEQ Scheme falls under Articles 9.1(d) and (e)), Brazil has 
proffered argument and evidence to d emonstrate that the MAEQ Scheme, considered as a whole, 
including its structure, design and operation, and the export subsidies provided thereunder, do not 
fall under these provisions. India has failed to rebut that argument and evidence.  
106. First, Brazil has demonstrated that the stated purpose of the MAEQ Scheme, based on the 
text of the measure, is to ensure the payment by sugar mills of sugarcane arrears owed to farmers. 
That purpose is most starkly confirmed by the existence of a provision tha t requires government 
payments to be made, on behalf of the sugar mills, to sugarcane farmers' bank accounts where 
sugarcane arrears exist. The text and the design and operation of the MAEQ Scheme, therefore, 
demonstrates that its purpose is not to offset transport and marketing costs incurred by sugar mills 
in relation to export sales.   
107. Second , Brazil has demonstrated that the MAEQ Scheme does not involve the qualitative 
aspects of subsidies covered by Articles 9.1(d) and (e). Article 9.1(d) only cov ers export subsidies 
that serve to reduce "specific types of costs that are incurred as part of  and during  the process of 
selling a product".14 However, under the MAEQ Scheme, sugarcane arrears arise because sugar mills 
have purchased sugarcane, prior to the process of producing and selling sugar. Faced with this 
evidence, India argued that, by improving the liquidity of sugar mills, payments under the MAEQ 
Scheme ultimately reduce the cost of marketing. However, this extreme stretch of the coverage of 
Article 9.1(d) has already been roundly rejected by the Appellate Body in US – FSC. As the Appellate 
Body explained,  if purchasing raw materials could be considered as an example of "costs of 
marketing" for export, then so too can virtually any other cost incu rred by a business engaged in 
exporting.15   
108. Nor can the MAEQ Scheme fall under Article 9.1(e) of the Agreement on Agriculture, because 
a direct payment simply does not constitute "internal transport and freight charges" under this 
provision.  
109. Third, Brazil has demonstrated that the application of a single and unchanging MAEQ subsidy 
rate per ton of sugar exported for all subsidy recipients reveals that, quantitatively, the MAEQ 
 
13 Appellate Body Repo rt, US – FSC, para. 130 . 
14 Appellate Body Report, US – FSC, para. 130 (emphasis in original).  
15 Appellate Body Report, US – FSC, para. 131.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  Scheme does not provide for export subsidies covered by Articl e 9.1(d) or (e). To be eligible for the 
lump sum MAEQ export subsidy, sugar mills do not need to show that they have actually incurred 
costs under any of the items listed; nor are they required to show actual expenditure under any of 
the cost items. This s ingle-rate design of the MAEQ Scheme does not, and cannot, account for 
whether a recipient actually incurs certain cost, and, even if such costs are incurred, the actual level 
of the costs. The lump sum subsidy that sugar mills receive under the MAEQ Schem e simply bears 
no rational relationship to any of the costs that the MAEQ Scheme allegedly covers.  
110. Consistent with these points, Brazil has proffered evidence showing that significant 
quantities of sugar exports from India benefit from subsidies unde r the MAEQ Scheme, and that 
those subsidies far exceed the relevant cost allegedly covered under the Scheme. Unsurprisingly, 
therefore, the audited annual reports of various sugar mills in India reveal that the recipients of 
subsidies under the MAEQ Scheme  consistently treat the grants received as other revenue, rather 
than as an offset against transportation or marketing costs incurred.  
111. Faced with Brazil's uncontestable argument and evidence showing that the MAEQ Scheme 
does not involve Article 9.1(d) or (e) export subsidies, India turned to a flawed technical procedural 
argument. India argued that Brazil bore the burden to establish a prima facie case that the MAEQ 
Scheme is not covered by Article 9.4, and to do so  in its First Written Submission , and that, having 
allegedly failed to do so, Brazil's later arguments and evidence must all be rejected. Once again, 
India erred.  
112. It is wel l established in WTO law that the party who asserts the affirmative of a claim or 
defense bears the burden of proof. Thus, contrary to India's assertion, it was India's, and not Brazil's, 
burden to demonstrate that the MAEQ Scheme is an export subsidy unde r Articles 9.1(d) or (e). This 
is because it was India that raised Article 9.4 and Articles 9.1(d) and (e) in its First Written 
Submission. Yet, even assuming that the initial burden lay with the Brazil (which it did not), Brazil 
has discharged that burden  by submitting relevant argument and evidence in accordance with the 
Panel's Working Procedures. As a result, and as summarized above, the Parties have fully briefed 
the substance of the issue raised by India. Since India has declined the many opportunitie s it has 
had, or has been unable, to refute Brazil's arguments and evidence, there is also no issue of due 
process. Nor is there any other legal basis for the Panel to decline discharging its duty under Article 
11 of the DSU to make an objective assessment  of the matter, including the evidence, before it. In 
short, India's argument relating to the allocation of the initial burden of proof is simply a distraction, 
and is irrelevant to the resolution of the present dispute.  
C. Conclusion  
113. As summarized above, Article 3.3 and Article 8 of the Agreement on Agriculture, read 
together with Section II of Part IV of India's Schedule, preclude India from providing export subsidies 
for sugar, within the meaning of Article 9.1(a) of the Agreement on Ag riculture. Nonetheless, India 
provides Article 9.1(a) export subsidies for sugar. In so doing, India acts inconsistently with 
Articles  3.3 and 8.  
IV. INDIA'S PRELIMINARY RULING REQUEST  
114. With its First Written Submission, India filed a Request for a Pre liminary Ruling by the Panel. 
India alleged, first, that certain legal instruments, which it erroneously identified as "measures" at 
issue, had expired prior to  the establishment of the Panel, and that those alleged "measures", 
therefore, fell outside the Panel's terms of reference. India also asserted that the Panel does not 
have jurisdiction over subsidies provided under the MAEQ Scheme, because that Scheme was 
enacted  after the establishment of the Panel. India erred. As summarized below, under the appli cable 
legal standard, the question whether a measure exists at the time of Panel establishment is not 
determinative of a panel's terms of reference.  
A. The Panel Has Authority to Examine the Legal Instruments that India Asserts 
Have Expired Prior to the Pa nel Establishment  
115. In response to India's first argument, Brazil explained that the Panel's terms of reference 
are governed by Articles 7.1 and 6.2 of the DSU. The Panel was established by the DSB with the 
standard terms of reference envisaged in Artic le 7.1. These terms of reference require the Panel to WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  examine "the matter" set out in Brazil's panel request. Specifically, the Panel is called upon to assess 
the consistency of those of India's measures that are identified in Brazil's panel request with t he 
provisions of the Agreement on Agriculture listed therein, and to make such findings as will assist 
the DSB in making the recommendations or in giving the rulings provided for in that agreement. 
Article 6.2 of the DSU, in turn, requires Brazil's panel r equest to "identify the specific measures at 
issue and provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly".16  
116. Brazil explained that it properly identified three sets of measures at issue: (i) the FRP, (ii) 
SAPs, and (iii) other non -exempt support for sugarcane (rather than specific legal instruments that 
from time to time provide for these measures). Brazil also explained that it properly set out the legal 
basis for its claims associated wi th these measures. The Panel, therefore, has authority to review 
these three sets of measures (which India did not assert have ceased to exist). Thus, rather than 
constituting the measures at issue, the legal instruments cited by India as allegedly having expired 
merely constitute evidence of the existence of the three sets of measures Brazil challenges.  
117. In any event, the Panel is not precluded from making findings and recommendations on 
measures that have expired, where those measures are specificall y identified in the panel request, 
and hence are within a panel's terms of reference. This is the case here, irrespective of whether the 
contested instruments are characterized as legal instruments that evidence the existence of 
specifically identified mea sures (as Brazil argues), or as measures at issue (as India would style the 
contested instruments). The Panel is justified in making findings and recommendations on expired 
measures, for example, where the expired measures continue to affect the operation of a covered 
agreement (here the Agreement on Agriculture), and where findings and recommendations 
contribute to a position solution of the dispute. Thus, contrary to India's arguments, expiry of a 
measure is simply not a basis for the Panel to decline val idly conferred jurisdiction.  
B. The Panel Has the Authority to Examine the MAEQ Scheme  
118. In response to India's second argument, Brazil has established that, contrary to India's 
assertion, Article 6.2 of the DSU does not categorically preclude the incl usion in a panel request and 
a panel's term of reference of measures that come into existence or are completed after a panel 
request. Instead, where the terms of the panel request at issue so permit, measures enacted 
subsequent to the establishment of the panel may, in certain limited circumstances, fall within a 
panel's terms of reference.  
119. An assessment of whether a post -establishment measure falls within a panel's terms of 
reference is a substantive rather than a formalistic one, requiring a panel t o consider the following: 
(i) whether the terms of the panel request permit the identification of the post -establishment 
measure; (ii) whether the original and the subsequent measures are "in essence, the same"; and 
(iii) whether findings and recommendatio ns on the post -establishment measure would be necessary 
to bring about a prompt and positive resolution of the dispute, under Articles 3.3 and 3.7 of the 
DSU. Brazil has established that the MAEQ Scheme satisfies these three requirements.  
120. First, Braz il's panel request is broad enough to cover the MAEQ Scheme. The express wording 
of its panel request identifies the specific measures at issue as including "Federal level export 
subsidies pertaining to sugar and sugarcane which make the provision of finan cial support contingent 
on export subsidies", including certain legal instruments identified by name as well as "all other 
Federal -level instruments, including all successor instruments, and any amendments thereto, 
providing Federal -level subsidies conting ent on export performance during the 2014/15, 2015/16, 
2016/17, 2018/19 seasons and subsequent seasons". The request also covers any "related, 
successor, replacement or implementing measures". The MAEQ Scheme fits comfortably within the 
express wording of Brazil's panel request as a "Federal -level instrument[]… providing Federal -level 
subsidies contingent on export performance" during a "subsequent season{}". The MAEQ Scheme 
is also closely "related" to the export subsidies that Brazil specifically identifi ed in its panel request.  
121. Second , the MAEQ Scheme is, in essence, the same as India's export subsidies policies in 
previous sugar seasons ( i.e., the sugar seasons 2015/16, 2017/18 and 2018/19). The MAEQ Scheme 
shares the same policy purpose and the same design, structure and impact as earlier export 
 
16 See Appellate Body Report, Argentina – Import Measures , para. 5.39.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  subsidies. Even though India adopts different names for those subsidies, the policy objectives of 
each of them, and the MAEQ Scheme, are the same – to address the chronic issues of arrears owed 
by sugar mills to sugarcane farmers. Furthermore, the associated export quota regimes all operate 
to evacuate the surplus sugar stocks.  
122. Finally , Brazil ha s shown that findings and recommendations covering the MAEQ Scheme are 
necessary for the prompt and positive resolution of the dispute, especially in light of India's recurring 
pattern of providing direct subsidies contingent upon fulfillment of minimum ex port volume 
requirements . Given the fundamental disagreement between India and Brazil on the legal 
characterization of the MAEQ Scheme, Brazil has shown that it is necessary for the Panel to examine 
the nature of this scheme in order to provide clarity as to whether a measure such as the MAEQ 
Scheme can benefit from any exemption under Article 9.4 of the Agreement on Agriculture, as India 
argues, or whether it falls under Article 9.1(a), as Brazil has established.  
123. For these reasons, Brazil requests th at the Panel finds that the MAEQ Scheme is within its 
terms of reference, and make findings and recommendations covering the MAEQ Scheme.  
V. CONCLUSION  
124. In concluding, Brazil requests that the Panel make the following findings:  
• India has provided dom estic support to sugarcane producers in excess of the de minimis 
threshold of 10 per cent of the total value of production for sugarcane. Therefore, India 
has acted inconsistently with its obligations under Article 7.2(b) of the Agreement on 
Agriculture.  
• India has provided export subsidies, within the meaning of Article 9.1(a) of the 
Agreement on Agriculture, in a manner inconsistent with Article 3.3 and Article 8 of the 
Agreement on Agriculture.  
Article 19.1 of the DSU requires that a panel "shall recommend that the Member concerned bring 
the measure into conformity with [a] covered agreement" where "a measure is inconsistent with a 
covered agreement". Brazil, therefore, requests the Panel to recommend that India bring its 
measures into conformity w ith the Agreement on Agriculture.  
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX  B-2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA  
I. INTRODUCTION  
1. Australia has brought this dispute because it is concerned that the significant support India 
provides to its produce rs of sugarcane and sugar is inconsistent with India's obligations under the 
Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures 
(SCM  Agreement). Australia does not take issue with India's right to support its sugarcane farm ers 
and sugar industry. However, India must do so consistently with its WTO obligations. Australia is a 
major exporter of sugar and considers that India's measures have a detrimental impact on Australia's 
interests.  
2. The evidence and arguments Australia has  set out in its submissions establish a prima facie  
case that India maintains domestic support for sugarcane producers that vastly exceeds its 
permissible level under the Agreement on Agriculture, and provides export subsidies for sugar in 
violation of its  commitments under both the Agreement on Agriculture and the SCM Agreement.  
Further, Australia has demonstrated that India has breached its obligations under those Agreements 
(or, in the alternative, under the General Agreement on Tariffs and Trade 1994 ( GATT 1994)) by 
failing to notify the WTO Membership of its measures relating to sugarcane and sugar.  
3. As Australia has demonstrated in its submissions, India has failed to provide any legal or 
factual basis to rebut Australia's prima facie  case in respect of any of the claims advanced. Australia 
asks the Panel to dismiss India's flawed defence of its measures, which is underpinned by 
unpersuasive legal arguments based on clear misinterpretations of India's obligations.  
4. Australia notes that India, in its first written submission, requested the Panel make a 
preliminary ruling that certain "measures" challenged by Australia were outside the scope of the 
Panel's terms of reference.1 Australia argued in response that India had failed to establis h that the 
Panel lacked the authority to assess any elements of Australia's claims.2 Australia's arguments on 
the substantive issues before the Panel are summarized below.  
II. MEASURES AT ISSUE  
A. DOMESTIC SUPPORT  
5. India provides domestic support for sugar cane producers in excess of its permitted level 
under the Agreement on Agriculture through the following measures.  
1. Fair and Remunerative Price  
6. The key element of India's support for its sugarcane producers is the Fair and Remunerative 
Price (FRP). The FRP is a mandatory minimum price, or floor price, set by the Central government 
for each sugar season3 and payable by producers of sugar (sugar mills) for sugarcane.4  
7. The Sugarcane (Control) Order 1966, made under the Essential Commodities Ac t 1955, 
provides that the Central government may determine the FRP by notification in the Gazette of India.5 
 
1 India's first written submission, paras. 32 –46.  
2 Australia's comments on India's request for a preliminary ruling; Australia's comments on India's 
response regarding India's request for a preliminary ruling.  
3 India's sugar season begins on 1 October an d ends on 31 September of the following year.  
4 Australia's first written submission, para. 23.  
5 Sugarcane (Control) Order 1966 ( Exhibit JE -45); Essential Commodities Act 1955 ( Exhibit JE -43); 
Australia's first written submission, paras. 24 –26.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  Sub-clause 3(2) of that Order prohibits the sale or purchase of sugarcane at a price lower than the 
FRP. Penalties for non -compliance include impr isonment and fines.6 
8. India does not dispute that it fixes the FRP or the prices set in the sugar seasons from 
2014–15 to 2019 –20, as established by Australia's evidence.7 
2. State Advised Prices  
9. In addition to the Central -level FRP, some Indian States al so set minimum prices that must 
be paid for sugarcane. These are known as State Advised Prices (SAPs) and exist in parallel with the 
FRP. In those States where a SAP applies, the sugar mills must pay the SAP instead of the FRP, and 
the SAPs are the same as , or higher than, the FRP.8 
10. Like the FRP, the SAPs are mandatory. The relevant State regulatory instruments generally 
provide that contravention is an offence punishable by fines and imprisonment.9  
11. Australia claims – and India does not contest10 – that, during various sugar seasons 
between 2014 –15 and 2018 –19, six Indian States (Bihar, Haryana, Punjab, Tamil Nadu, Uttarakhand 
and Uttar Pradesh) set SAPs.11 
3. Other State -level programmes  
12. Three Indian State governments maintain or have maintained programm es that provide 
assistance to sugarcane producers in addition to  the support provided by the minimum sugarcane 
price.  
(a) Andhra Pradesh: Purchase tax remittance  
13. Andhra Pradesh offered a purchase tax remittance of INR  60 per metric tonne in the 2014–
15 and 2015 –16 sugar seasons. Under this programme, the purchase tax that would otherwise have 
been payable by sugar mills was foregone, and the benefit was passed on to sugarcane farmers who 
therefore received a price higher than the FRP.12 
14. India claims that no expenditure was made under this programme.13 Australia disagrees.14 
(b) Karnataka: Incentive price payment  
15. In the 2017 –18 sugar season, Karnataka provided a "Payment of Incentive Price for Sugar 
Cane through Sugar Factories" under whic h sugarcane farmers received – via the sugar mills – an 
incentive sugarcane price higher than the FRP.15  
16. India argues that no expenditure was made under this programme.16 Australia disagrees.17 
 
6 Essenti al Commodities Act 1955 ( Exhibit JE -43), Section 7; Australia's first written submission, para. 
37. 
7 India's first written submission, paras. 16 –18, 41; Australia's first written submission, Table 2.  
8 Australia's first written submission, para. 41.  
9 Australia's first written submission, para. 43.  
10 India does not dispute that Haryana, Punjab, Uttarakhand and Uttar Pradesh set SAPs: India's first 
written submission, paras. 29 –30. India argues that Bihar and Tamil Nadu no longer set SAPs but does not 
dispute that those States did, in the relevant past sugar seasons, set SAPs: India's first written submission, 
paras. 30, 42(vii). See also , Australia's second written submission, paras. 18 –20.  
11 For details of the applicable sugar seasons and the SAPs in these States, see Australia's first written 
submission, paras. 48 –61, Tables 4 –9.  
12 Australia's first written submission, paras. 190 –192; Australia's responses to Panel questions 28(c) 
(paras.  84–86), 28(d) (paras. 87 –91). 
13 India's responses to Panel questions 28(d) (p. 20), 74(b) (p. 11).  
14 Australia's comments on India's response to Panel question 74(b), paras. 31 –32.  
15 Australia's first written submission, para. 195; Australia's response to Panel question 77, paras. 94 –
98.  
16 India's response to Guatemala's question 3, p. 2.  
17 Australia's comments on India's response to Guatemala's question 3, paras. 60 –61. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  (c) Tamil Nadu: Production incentive payment  
17. Under Tamil Nadu 's "production incentive to sugarcane farmers" programme, the State 
government pays, directly to sugarcane farmers, the difference between Tamil Nadu's SAP for the 
2016–17 sugar season and the relevant season's base FRP.18 Australia has adduced evidence of  the 
amounts disbursed under this programme in the 2017 –18 and 2018 –19 sugar seasons.19 India has 
not challenged that evidence.  
4. Other measures involving payments to maintain the FRP and 
SAPs  
18. India implements a range of other measures at both the Central and State levels that 
provide domestic support in favour of sugarcane producers. Those measures are production 
subsidies; soft loans; buffer stock subsidies; transport, freight and marketing subsidies; and other 
State -level measures. Although the m easures are directed to sugar mills, the funds are paid to mills 
to support their payment of the FRP or applicable SAP, or are paid to sugarcane farmers on mills' 
behalf to clear the mills' sugarcane price debts.20  
19. With one minor exception, India does not  dispute the facts regarding these measures.21 
Australia also challenges some of the same measures as providing export subsidies.  
B. EXPORT SUBSIDIES  
20. India violates its obligations under the Agreement on Agriculture and the SCM Agreement 
through the measures described below, which provide export -contingent subsidies.  
21. A central feature of India's regime of export subsidies for sugar are its Minimum Indi cative 
Export Quotas (MIEQ) and Maximum Admissible Export Quantities (MAEQ), under which India 
allocates sugar export quotas to sugar mills on a per -mill basis. India ties MIEQ and MAEQ to direct 
payment schemes, making financial assistance, or the value o f that assistance, contingent upon 
compliance with government orders or directives imposing MIEQ and MAEQ.22  
1. Production subsidy schemes operating in conjunction with 
Minimum Indicative Export Quota orders  
22. India provides production subsidies to sugar mi lls to help clear their debts to sugarcane 
farmers arising from the obligation to pay the FRP. These schemes are the "Scheme for extending 
production subsidy to sugar mills", implemented in the 2015 –16 sugar season, and the "Scheme for 
Assistance to Sugar Mills", implemented in the 2017 –18 and 2018 –19 sugar seasons. Mills' eligibility 
to receive the subsidy is, under each iteration of the scheme, subject to compliance with MIEQ 
orders.23 
2. Buffer stock subsidy schemes operating in conjunction with 
Minimum Indicative Export Quota orders  
23. India provides buffer stock subsidies to assist sugar mills to clear sugarcane price debts 
arising from the obligation to pay farmers the FRP.  These schemes are the "Scheme for Creation 
and Maintenance of Buffer Stock of 30 Lakh MT", introduced in 2018, and the "Scheme for the 
Creation and Maintenance of Buffer Stock of 40 Lakh MT", introduced in 2019. The 2018 iteration of 
 
18 Australia's first written submission, paras. 198 –201. The "base FRP " is the minimum price payable for 
sugarcane at or below the FRP's basic recovery rate (or quality). In the 2018 –19 sugar season, sugarcane with 
a recovery rate below the FRP's basic recovery rate received a minimum price lower than the base FRP: 
Australia's first written submission, paras. 28 –35, Table 2.  
19 Australia's response to Panel question 73, paras. 71 –75. 
20 These measures are listed in Australia's first written submission, paras. 181 –184, Annexes A –E. 
21 India's first written submission, para. 43; Australia's second  written submission, paras. 22 –23. 
22 Australia's first written submission, paras. 219 –220.  
23 Australia's first written submission, para. 230.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  the scheme linked compliance with MIEQ with eligibility to receive payments, while the 2019 iteration 
linked favourable MIEQ performance with the value of available payments.24   
3. Purported transport, freight and marketing subsidy scheme 
operating in conjunction with Maximum Admissible Export 
Quantities orders  
24. India provides self -described "transport, freight and marketing" subsidies to sugar mills to 
help them clear sugarcane price debts arising from the obligation to pay the FRP. India provides 
these subsidies through the "Scheme for providing assistance to sugar mills for expenses on 
marketing costs including handling, upgrading and other processing costs and costs of international 
and internal transport and freight charges on export of sugar" (MAEQ  scheme), which applied from 
1 October  2019 to 31 December  2020. Eligibility to receive the subsidy is subject to mills exporting 
at least 50% of their MAEQ allocations.25 
4. Duty Free Import Authorisation scheme  
25. India incentivizes mills to export sugar during seasons of overproduction by offering to 
forego sugar import duties in subsequent seaso ns. In March 2018, India amended its Duty Free 
Import Authorisation (DFIA) scheme in order to entitle sugar mills that exported refined sugar during 
a six-month period in the 2017 –18 sugar season to import raw sugar duty free during the 2019 –20 
and 2020 –21 seasons.26  
C. FAILURE TO NOTIFY MEASURES  
26. India has not notified Members of its annual domestic support for sugarcane subsequent 
to 1995 –1996, and India has not submitted an export subsidy notification for sugar since 2009 –
10.27 India does not dispute the se facts. This failure to submit notifications of its measures breaches 
India's obligations under the Agreement on Agriculture and the SCM Agreement or, in the alternative, 
under the GATT 1994.  
III. INDIA'S DOMESTIC SUPPORT IN FAVOUR OF SUGARCANE PRODUCERS  VIOLATES 
ITS OBLIGATIONS UNDER THE AGREEMENT ON AGRICULTURE  
27. Under the Agreement on Agriculture, India may provide domestic support in favour of its 
agricultural producers, provided that support does not exceed its commitment levels. In the context 
of the Agreement on Agriculture, domestic support is expressed in numerical – monetary – terms28 
as an annual level of support, referred to as the "Aggregate Measurement of Support" (AMS). 
Domestic support may be product -specific support provided for an agricultural product in favour of 
the producers of that product, or it may be non -product - specifi c support provided in favour of 
agricultural producers in general.29 A Member's Total AMS is the sum of all of its non -exempt 
domestic support in favour of agricultural producers, excluding support that does not exceed a 
permitted de minimis  level.30 
28. Articles 6.4 and 7.2(b) of the Agreement on Agriculture provide that, where a developing 
country Member has no Total AMS commitment in Part IV of its Schedule of Concessions on Goods 
(Schedule), the Member must not provide non -exempt, product -specific domestic support in excess 
 
24 Australia's first written submission, paras. 231 –233, Annex C.  
25 Australia's first written submission, para. 2 34, Annex D -03; Australia's opening statement at the first 
substantive meeting, para. 76.  
26 Australia's first written submission, para. 235; Australia's second written submission, paras. 214 –217. 
27 Australia's first written submission, paras. 450 –466. 
28 Agreement on Agriculture, Article 1(a) and Annex 3, paragraph 6. See also , Australia's first written 
submission, para. 84.  
29 Agreement on Agriculture, Article 1(a). See also , Article 6.4(a) and Annex 3; Australia's first written 
submission, para. 86.  
30 Agreement on Agriculture, Articles 1(h), 6.4 and 7.2(a). See also , Australia's first written submission, 
paras. 87, 90, 94.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  of the de minimis  level of 10 per cent of the total value of production of a basic agricultural product 
during the relevant year.31 
29. India is a developing country Member and agrees that it has no Total AMS commitment in 
Part IV, Section I of its Schedule.32 Thus, India's non -exempt domestic support for sugarcane 
producers must not exceed 10 per cent of the total value of sugarcane production in any sugar 
season.33 
30. Some domestic support measures are exempt from reduction commitments pursuant  to 
Articles 6.2 or 6.5, or Annex  2.34 These measures are not included in the calculation of a Member's 
Total AMS.35 India has not argued or adduced evidence that any of the domestic support measures 
challenged by Australia are exempt.36 
31. Annex  3 of the Agr eement on Agriculture, which is titled "Domestic Support: Calculation of 
Aggregate Measurement of Support", describes how to calculate a Member's AMS.37 Paragraph  1 of 
Annex  3 provides that the product -specific AMS shall be calculated for each basic agricu ltural product 
receiving "market price support, non -exempt direct payments, or any other subsidy not exempted 
from the reduction commitment ('other non -exempt policies')".38 Annex 3 as well as Annex  4 
stipulate how to quantify the monetary value of each of  these kinds of support to calculate a product -
specific AMS.  
32. To determine whether non -exempt product -specific domestic support exceeds the de 
minimis  percentage , the product -specific AMS is divided by the total value of production of the 
relevant basic ag ricultural product in the relevant year.39 
33. India's domestic support measures in favour of its sugarcane producers constitute market 
price support and other non -exempt support.  
A. MARKET PRICE SUPPORT  
1. The meaning of market price support  
34. Australia considers that "market price support" must be interpreted in accordance with its 
ordinary meaning, read in context, and in light of the Agreement on Agriculture's object and 
purpose.40 Market price support will exist when a Member sets a price for a basic agricultural product 
through administrative action and determines the production eligible to receive that price.41 
35. India, on the other hand, advocates for an unjustifiably narrow interpretation of market 
price support.42 A proper interpretation of the Agre ement on Agriculture demonstrates that India's 
arguments are erroneous.  
 
31 Australia's first written submission, paras. 98 –100, 148. The Agreement on Agriculture provides in 
Article 1 that "unless the context otherwise requires… (i)  'year'… in relation to the specific commitments of a 
Member refers to the calendar, financial or marketing year specified in the Schedule relating to that Member. " 
32 India's response to Panel question 46, p. 4; Australia's first wri tten submission, paras. 103 –107.  
33 Australia's first written submission, para. 108.  
34 Australia's first written submission, para. 142.  
35 Agreement on Agriculture, Article 7.2(a).  
36 Australia's response to Panel question 51, para. 17.  
37 Agreement on Agriculture, Article 1(a)(ii).  
38 Agreement on Agriculture, Annex 3, paragraph 1.  
39 Agreement on Agriculture, Article 6.4(a)(i). See, for example, the panel's approach in China – 
Agricultural Producers , Tables  9–16, and para 7.412. See also , Australia's first written submission, paras. 145 –
147.  
40 Consistent with Article 31(1) of the Vie nna Convention on the Law of Treaties, which forms part of the 
customary rules of interpretation of public international law: Appellate Body Report, US – Gasoline , p. 17. 
Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes provides that 
the WTO covered agreements are to be interpreted in accordance with these rules: Australia's second written 
submission, footnote 32.  
41 Australia's second written submission, paras. 33, 50.   
42 India's first written submission, paras . 62–63; India's responses to Panel questions 18(a) (p. 14), 
25(b) (p. 18); India's opening statement at the first substantive meeting, para.  9; India's closing statement at 
the first substantive meeting, paras.  24–28. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  (a) Ordinary meaning  
36. "Market price support" is not defined in Article  1 of the Agreement on Agriculture, which 
defines a range of terms used in the Agreement.  Annex  4 of the Agreement states that market price 
support is "defined in Annex  3".43  
37. Paragraphs  1 and 8 of Annex  3 both refer to "market price support", so the interpretation 
of the term should begin with those paragraphs.  
38.  Australia recalls that paragraph  1 lists the t hree kinds of domestic support that are, subject 
to Article  6, to be included in the calculation of the product -specific AMS.44 
39. India argues that the phrase "or any other subsidy" in paragraph 1 means that market 
price support must take the form of a subsi dy.45 Australia disagrees. The words "any other" reflect 
an intent to ensure that all non-exempt domestic support – including support that is neither market 
price support nor a direct payment – is included in the AMS.46 
40. Building on the tenuous foundation o f its interpretation of paragraph  1 of Annex  3, India 
contends – based on the words "shall include both" – that paragraph 2 of that Annex provides an 
exhaustive definition of what may constitute a subsidy under paragraph  1.47 Again, Australia 
disagrees. Pa ragraph 2 simply provides that "both budgetary outlays and revenue foregone by 
governments or their agents"48 are subsidies that are included in the AMS calculation. The term 
"includes" is not exclusive or restrictive, and the term "both" provides emphasis .49 
41. The critical flaws in India's arguments become even more apparent in light of the only 
other paragraph in Annex  3 that includes the words "market price support": paragraph  8. That 
paragraph undermines India's defence,50 which is why India has opted eit her to ignore51 or to 
downplay52 its significance.  
42. Paragraph  8 of Annex 3 provides:  
Market price support: market price support shall be calculated using the gap between a 
fixed external reference price and the applied administered price multiplied by the quantity 
of production eligible to receive the applied administered price. Budgetary payments made 
to maintain this gap, such as buying -in or storage costs, shall not be included in the AMS.  
43. The first sentence of paragraph  8 sets out the formula for calcul ating the value of market 
price support to be included in the AMS, which may be represented by the following equation:   
(Applied Administered Price – Fixed External Reference Price) x Quantity of Eligible 
Production = value of market price support  
44. The for mula has three components: an Applied Administered Price (AAP), the Fixed 
External Reference Price (FERP) and a Quantity of Eligible Production (QEP). Pursuant to the second 
 
43 Agreement on Agriculture, Annex 4, para. 1.  
44 See paragraph  31 above. See also , Australia's second written submission, para. 56, citing Chairman’s 
note on options in the agricultural negotiations, MTN.GNG/AG/W/1/Add.4 ( Exhibit JE -156), para. 3.   
45 India's responses to Panel questions 18(a) (p. 14), 18(c) (p. 14); India's opening statement at the 
first substantive meeting, paras.  24–25; India's second written submission, paras. 16 –18. 
46 Australia's second written submission, para. 57.  
47 India's opening statement at the first substantive meeting, paras.  26–28; India's closing statement at 
the first substantive meeting, para. 28; India's second written submission, paras. 20 –24. 
48 Agreement  on Agriculture, Annex 3, paragraph 2 (emphasis added).  
49 Australia's second written submission, paras. 59 –64. 
50 Australia's opening statement at the first substantive meeting, para. 48; Australia's opening 
statement at the second substantive meeting, para . 38.  
51 Australia's opening statement at the first substantive meeting, para. 48; Australia's second written 
submission, para. 36; Australia's opening statement at the second substantive meeting, para. 35.  
52 Australia's second written submission, paras. 25, 68 –70; Australia's opening statement at the second 
substantive meeting, paras. 36 –39.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  sentence of paragraph  8, budgetary payments made to maintain the "gap" between the  FERP and 
the AAP are not included in the AMS.53 
45. An AAP is a price that is set, determined, made effective or brought to bear by 
administrative action (including regulatory action), rather than being determined only by market 
forces.  It need not be a pric e that is achieved by government expenditure and it need not involve 
budgetary payments or procurement.54 In China – Agricultural Producers , the panel found that 
"applied administered price" means "… the price set by the government at which specified entities 
will purchase certain basic agricultural products".55    
46. The FERP is a reference price for the basic agricultural product from a base period (the 
years 1986 –88 for original Members), which may be adjusted for quality differences as necessary.56 
47. The QEP is the quantity or volume of production entitled, fit or able to rec eive the AAP 
according to the terms of the measure – not the amount that actually receives the AAP.57 As the 
panel in China – Agricultural Producers  observed, "the pertinent question [to determine the QEP] is 
whether the [product] that was produced would b e able to benefit from the [AAP] if the seller so 
desired".58  
48. Accordingly, market price support will exist and have a value measurable under 
paragraph  8 when a Member sets an AAP for a basic agricultural product that is higher than the 
relevant FERP, and determines the production eligible to receive the AAP.59  
49. Paragraph 8 does not stipulate or imply that the government or its agents must procure 
the product at the AAP. Thus, India's argument that market price support requires government 
procurement is inc ompatible with the ordinary meaning of paragraphs  1 and 8 of Annex  3 and reads 
into the text a limitation that is not there.60 
50. India seeks to diminish the importance of paragraph  8 by arguing that it only provides how 
to calculate  market price support. Acc ording to India, it is paragraphs  1 and 2 of Annex  3 that 
determine when  market price support will exist.61 India's argument finds no support in the text of 
Annex 3.  As Australia has already outlined, the purpose of Annex  3 is to stipulate the method for 
calculating in monetary terms a Member's non -exempt domestic support or AMS.62 The Annex does 
not differentiate  between when  market price support exists and how to calculate the value of such 
support, as India argues.63   
(b) Context  
51. Articles 6.1 and 6.2, and Annex 4, of the Agreement on Agriculture, as well as India's 
Schedule, each provide relevant context for interpreting "market price support" in this dispute, which 
serves to reinforce the ordinary meaning of the term.  
 
53 Australia's first written submission, paras. 113 –115; Australia's opening statement at the first 
substantive meeting , para.  49. 
54 Australia's first written submission, paras. 116 –119, citing Panel Report, Korea – Various Measures on 
Beef, para. 827.  
55 Australia's first written submission, para. 117, citing Panel Report, China – Agricultural Producers , 
para. 7.177.  
56 Agreement on Agriculture, Annex 3, paragraph 9. See also , Australia's first written submission, paras. 
120–122.  
57 Appellate Body Report, Korea – Various Measures on Beef , para. 120. See also , Panel Report, China – 
Agricultural Producers , paras. 7.282 –286; Au stralia's first written submission, paras. 123 –130.    
58 Panel Report, China – Agricultural Producers , para. 7.314. See also , Australia's first written 
submission, paras. 123 –130. 
59 Australia's second written submission, para. 33. Market price support may also exist in the absence of 
a FERP, in which case such support is calculated in accordance with the Agreement on Agriculture, Annex 4, 
para. 2.  
60 Australia's second written submission, paras. 34 –35.  
61 India's closing statement at the first substantive m eeting, para. 14; India's second written 
submission, para. 39.  
62 See paragraph  31 above.  
63 Australia's second written submission, paras. 68 –70; Austr alia's opening statement at the second 
substantive meeting, paras. 35 –39.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  52. Article 6.1  provides that a Member's domestic support commitments "apply to all of its 
[non-exempt] domestic support measures in favour of agricultural producers…"64. The 
Article  confirms that the only domestic support measures that are not subject to a Member's 
commitments are those that are exempt .65 
53. Article 6.2  provides that both "direct" and "indirect" governmental measures of assistance 
are subject to domestic support reduction commitments unless they are exempt.  It indicates that 
dome stic support measures disciplined by the Agreement on Agriculture may be provided to 
producers directly  by government (or its agents) or through indirect  means, such as by regulating 
the price paid by consumers of a basic agricultural product.66   
54. Annex  4 describes how to calculate an equivalent measurement of support when market 
price support exists but it "is not practicable"67 to calculate that component of the AMS.  Budgetary 
outlays may only be used to calculate the value of market price support when i t is not practicable to 
use the formula in paragraph 8 of Annex  3 or the alternative methodology in paragraph  2 of Annex  4. 
Also, the budgetary outlays are not limited to those used for government procurement of the product 
– the outlays must simply be use d to maintain the price.  Annex  4, therefore, adds further weight 
to the argument that market price support may exist in the absence of budgetary outlays used to 
procure the product at the AAP.68 
55. Finally, the tables of supporting material incorporated by r eference in Part  IV of India's 
Schedule  confirm that India considered the Sugarcane (Control) Order 1966 in force during the base 
period had established an AAP and constituted market price support.69 That Order, which was 
amended in 2009 to introduce the F RP, fixed the minimum price of sugarcane to be paid by all 
producers of sugar (the mills) to the producers of sugarcane (the farmers). Like the FRP, the floor 
price was paid by the mills, not by the Indian government.70 
56. India argues that Members' Schedules are not relevant to interpreting the meaning of 
"market price support", and that relying on Schedules would result in terms having multiple 
meanings.71 Australia disagrees. Members' Schedules may provide relevant context for interpreting 
Members'  legal obligations.72 A Member's Schedule cannot override the ordinary meaning of the 
terms of the Agreement on Agriculture, as India implies it would, but a Schedule may provide 
relevant context for interpreting those terms. In this instance, the context provided by India's 
supporting tables reinforces the ordinary meaning of "market price support" and underscores India's 
own interpretation of the term at the time of constituting its Schedule.73 
(c) Object and purpose  
57. The object and purpose of the Agreement on  Agriculture support an interpretation of 
"market price support" that is not limited to government procurement of a product at the AAP. The 
Agreement's object and purpose, as stated in its preamble, is relevantly:  
 
64 Agreement on Agriculture, Article 6.1 (emphasis added).  
65 Australia's second written submission, paras. 38 –39.  
66 Australia's second written submission, para. 40.  
67 Agreement on Agriculture, Annex  4, para. 1.  
68 Australia's second written submission, para. 42.  
69 G/AG/AGST/IND, p. 28 incorporated by reference by India's Schedule, Part IV, Section I, Column  3. 
In notifying its market price support for the base period (1986 –88), in a table titled "Aggregate Measurement 
of Support: Market Price Support ", India lists the prices fixed by the Sugarcane (Control) Order 1966 then in 
force as an "Applied administered price " and uses that price to calculate its market price support for sugarcane.   
70 Australia's first written submission, para.  25; Australia's opening stateme nt at the first substantive 
meeting, para.  54; Australia's second written submission, para. 43.  
71 India's second written submission, para. 50. See also , India's responses to Panel questions 48(e) (p. 
6), 63 (p. 5).  
72 Australia's second written submission, para. 45, citing Panel Report, China – Agricultural Producers , 
para. 7.263 and Appellate Body Report, US – Gambling , paras. 178, 182.  
73 Australia's second written submission, paras. 44 –45; Australia's comments on India's response to 
Panel question 63, para s. 7–11. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  • to achieve " substantial progressive reductions in agricultural support" through 
specific binding commitments including with respect to "domestic support";74 and 
• to discipline and reduce domestic support measures, with a view to preventing 
distortions in world agricultural markets  and establishing a "fair and market -
oriented agricultural trading system".75  
58. Thus, the Agreement's objectives are broader than that of limiting domestic subsidies  in 
favour of agricultural products. If Members' domestic support commitments were limited t o 
subsidies, as India contends, the Agreement on Agriculture would simply refer to subsidies for 
agricultural products, rather than specifying three distinct kinds of domestic support, each with 
alternative methods of calculation.76 
59. India's argument that m arket price support requires procurement by government (or its 
agents) would also undermine the domestic support disciplines in the Agreement by enabling 
Members to easily circumvent their commitments by ensuring they (or their agents) did not procure 
the product.77 
60. Finally, India's interpretation of market price support would undermine the Agreement on 
Agriculture's goal of preventing distortions in global agricultural markets. The Agreement recognises 
price support as being inherently trade -distorting and  as having production effects.78 As 
demonstrated by India's FRP and SAP measures, government mandated floor prices for basic 
agricultural products impact production decisions and distort trade irrespective of who purchases the 
product .79   
(d) Conclusion  
61. "Mark et price support" under the Agreement on Agriculture will exist when a Member 
establishes an AAP and determines the production eligible to receive that AAP. India's argument that 
procurement at the AAP by a government (or its agent) is essential is incompa tible with a proper 
interpretation of "market price support".80 
2. Calculation of India's market price support for sugarcane  
(a) The FRP and SAP measures are AAPs  
62. The FRP and SAPs are mandatory minimum prices for sugarcane that are determined by 
the administrative action of India's Central and State governments. The FRP and SAPs are, therefore, 
AAPs within the meaning of the Agreement on Agriculture.81  
(b) India's FERP for sugarcane  
63. India's supporting table incorporated by reference in Part IV of its Sch edule confirms that 
its FERP is INR 156.16 per metric tonne for sugarcane with a recovery rate of 8.5 per cent. Australia 
recalls that the FERP may be adjusted for quality differences.82 As the average recovery rates – or 
quality – of sugarcane in India to day are higher than this historical recovery rate, Australia considers 
 
74 Agreement on Agriculture, Preamble, recitals 3 and 4.  
75 Agreement on Agriculture, Preamble, recitals 2 and 3. See also , Australia's first written submission, 
para. 126. 
76 Australia's second written submission, para. 58.  
77 Australia's second wri tten submission, para. 47.  
78 Agreement on Agriculture, Annex 2, paragraph 1(b). See also , Australia's first written submission, 
para. 126.  
79 See the evidence that India's FRP and SAP measures impact production decisions cited in 
footnote  171 of Australia's  first written submission, para.  126. See also , Australia's second written submission, 
para. 47.  
80 Australia's second written submission, para. 50.  
81 Australia's first written submission, paras. 153 –156.  
82 Agreement on Agriculture, Annex 3, paragraph 9. S ee paragraph  46 above.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  it necessary to adjust India's FERP to allow the AAP and the FERP to be compared at the same quality 
level.83 
(c) QEP 
64. All sugarcane in India is fit or entitled to receive the FRP and, in St ates where SAPs apply, 
all sugarcane produced is able to receive the relevant SAP. The relevant measures do not impose 
any conditions or limitations on sugarcane that is eligible to be purchased at the FRP or SAP.84 The 
price payable may vary based on the quality of the sugarcane but all sugarcane – regardless of 
quality – is entitled to receive a minimum price.85 
(d) India's measures involving payments to maintain the "gap" 
between the FERP and the AAP  
65. Australia considers that India maintains measures – at bot h the Central and State levels – 
that achieve or maintain the AAPs for sugarcane, being the FRP or SAPs.86 Consistent with the second 
sentence of paragraph  8 of Annex  3, Australia has not included the budgetary outlays for these 
measures in calculating Ind ia's AMS for sugarcane. However, Australia nonetheless considers that 
they are measures through which India is providing or has provided non -exempt domestic support, 
which should be covered by the Panel's findings.87 
(e) India's market price support exceeds it s permitted level  
66. Australia has calculated India's market price support for sugarcane producers in the sugar 
seasons 2014 –15 to 2018 –19 using the formula in Annex  3 of the Agreement on Agriculture and 
data from official Indian government instruments and pu blications. These calculations, a summary 
of which is at Annex A, demonstrate that India's market price support, provided through its FRP and 
SAP measures, vastly exceeds  its permitted de minimis  level.88 Thus, through its market price 
support alone, India violates its obligations under the Agreement on Agriculture.  
B. OTHER NON -EXEMPT DOMESTIC SUPPORT  
67. In addition to market price support, India also provides other non -exempt domestic support 
to it sugarcane p roducers in the form of non -exempt direct payments or other policies.  
1. Calculation of India's other non -exempt domestic support for 
sugarcane  
68. Paragraphs  10, 12 and 13 of Annex  3 of the Agreement on Agriculture provide that the 
value of other non -exempt dome stic support measures may be measured using budgetary outlays.89 
Australia recalls that the value of these measures should only be added to the product -specific AMS 
if the budgetary payments are not made to maintain the gap between the FERP and the AAP.90 
2. The Andhra Pradesh, Karnataka and Tamil Nadu programmes  
69. The Andhra Pradesh purchase tax remittance, the Karnataka incentive price payment and 
the Tamil Nadu production incentive payment programmes constitute "non -exempt direct payments" 
 
83 Australia's first written submission, paras. 158 –162; Australia's response to Panel question 62(a), 
paras. 26 –32. 
84 Australia 's first written submission, para. 164.  
85 For instance, the FRP consists of a minimum or base price payable for sugarcane of a basic recovery 
rate but premiums are payable for cane with higher recovery rates. In the 2018 –19 and 2019 –20 sugar 
seasons, suga rcane with a recovery rate below the basic recovery rate received a lower floor price: Australia's 
first written submission, paras. 28 –35, Table 2.  
86 These measures are listed in Australia's first written submission, paras. 182 –183.  
87 Australia's first wr itten submission, paras. 181 –186; Australia's response to Panel question 20(b), 
paras. 47 –51.  
88 Australia's domestic support calculations, Microsoft Excel workbooks, Revision 3 ( Exhibit AUS -1 
(Revision  3)). 
89 Australia's first written submission, paras. 135 –143. 
90 Agreement on Agriculture, Annex 3, paragraph 8. See paragraph  44 above.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  or "other subsid[i es] not exempted from the reduction commitment".91 Under those programmes, 
the State governments provide funds not directed towards paying – or, in other words, maintaining 
– the FRP, which result in the sugarcane farmers receiving additional income. Thus,  the budgetary 
outlays for these programmes may be added to India's AMS for sugarcane, as Australia has done in 
its calculations.92  
70. However, in view of the very marginal increases in India's AMS for sugarcane that arise 
from including the programmes' budgetary outlays, if the Panel finds that India's market price 
support exceeds its permitted level, Australia considers that the Panel m ay decide to not to include 
these programmes in India's AMS. If the Panel were to exercise judicial economy, Australia considers 
that the Panel's ruling should nevertheless apply to all forms of India's non -exempt domestic 
support, whether or not these wer e included in the AMS.93 
C. INDIA'S AMS  FOR SUGARCANE PRODUCERS VASTLY EXCEEDS ITS PERMITTED DE MINIMIS  
LEVEL  
71. Australia has established, through argument and evidence, that India's domestic support 
in favour of its sugarcane producers – consisting of market p rice support and other non -exempt 
support – vastly exceeds its permitted de minimis  level. Australia's calculations of India's domestic 
support in the sugar seasons from 2014 –15 to 2018 –19, as summarized in Annex  A, demonstrate 
the magnitude of India's vio lation.94 
72. By India's own admission, the principal measures through which it maintains this level of 
domestic support – the FRP and SAPs – remain in effect.95 
IV. INDIA'S EXPORT SUBSIDIES FOR SUGAR ARE INCONSISTENT WITH 
ITS OBLIGATIONS UNDER THE AGREEMENT ON AGRICULTURE AND 
THE SCM AGREEMENT  
73. Under the Agreement on Agriculture,  India has committed to limit its export subsidies to 
producers of agricultural products. Pursuant to Articles 3.1(a) and 8 of the Agreement, India has 
also undertaken not to  provide export subsidies otherwise than in conformity with its scheduled 
reduction commitments.   
74. Under Article 3.3 of the Agreement on Agriculture, India has committed not to provide any 
export subsidies of the kinds listed in Article 9.1 for unscheduled  agricultural products. Further, it 
has committed, under Article 10.1, not to use export subsidies of kinds not listed in Article 9.1, in a 
manner that results in, or threatens to lead to, circumvention of its export subsidies reduction 
commitments. The pr ohibition in Article 3.3 applies subject to Article 9.4, which concerns only export 
subsidies of the kinds listed in Articles  9.1(d) and (e).96 
75. India agrees that Part IV, Section II, of its Schedule contains no export subsidy reduction 
commitments in relat ion to sugar.97 Sugar is, therefore, an unscheduled  agricultural product, for 
which India must not provide any Article 9.1 export subsidies.98 
76. Articles 3.1(a) and 3.2 of the SCM Agreement also prohibit India from granting or 
maintaining export subsidies.  Pursuant to Article 1.1. of the SCM Agreement, a "subsidy" is deemed 
 
91 Agreement on Agric ulture, Annex 3, paragraph 1; Australia's first written submission, paras. 189 –
202; Australia's responses to Panel questions 26(a) (paras. 61 –62), 27 (paras. 71 –83), 50 (paras. 8 –12).  
92 Australia's domestic support calculations, Microsoft Excel workbooks,  Revision 3 ( Exhibit AUS -1 
(Revision  3)). 
93 Australia's response to Panel question 23(a), paras. 53 –54.  
94 Australia's domestic support calculations, Microsoft Excel workbooks, Revision 3 ( Exhibit AUS -1 
(Revision  3)). 
95 India's first written submission, pa ras. 16 –18, 29 –30; Australia's opening statement at the first 
substantive meeting, para.  8. 
96 Australia's first written submission, paras. 236 –252; Australia's second written submission, para. 90.  
97 India's response to Panel question 38, pp. 25 –26. 
98 Australia's first written submission, paras. 247 –251; Australia's second written submission, para.  91. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  to exist where there is a "financial contribution" by a "government or public body" that confers a 
"benefit" on its recipient.99   
77. India's sugar export subsidies are contrary to its oblig ations under both agreements. 
Australia begins its analysis with the Agreement on Agriculture because, to the extent of any 
inconsistency between the two agreements, the Agreement on Agriculture prevails.100 India 
acknowledges this hierarchy between the two Agreements.101 
A. INDIA PROVIDES "DIRECT SUBSIDIES " THAT ARE "CONTINGENT ON EXPORT 
PERFORMANCE " WITHIN THE MEANING OF ARTICLE 9.1(A)  OF THE AGREEMENT ON 
AGRICULTURE  
78. Article 1(e) of the Agreement on Agriculture defines "export subsidies" as "subsidies 
contingent on export performance", including the practices listed in Article 9.1.  Article 9.1(a) of the 
Agreement concerns direct subsidies including payments -in-kind, that are provided by governments 
or their agencies to a firm, an industry, producers of an agricultural product, a cooperative or other 
association of such producers, or to a marketing board, and that are contingent on export 
performance.102 
1. India's production subsidies, buffer stock sub sidies and its 
MAEQ and DFIA schemes are Article 9.1(a) subsidies  
79. India's production and buffer stock subsidies and its MAEQ and DFIA schemes are export 
subsidies within the meaning of Article 9.1(a).   
80. Each scheme involves a direct transfer of economic re sources from the Indian government 
to sugar mills for less than full consideration. Pursuant to the production and buffer stock subsidies 
and the MAEQ scheme, India's Department of Food and Public Distribution makes funds available to 
clear sugar mills' de bts to sugarcane farmers. Under the DFIA scheme, the government foregoes 
import tax revenue that mills would otherwise owe it.  
81. Sugar mills are "producers of an agricultural product".103 However, noting the degree of 
overlap between the categories of subsid y recipient in Article 9.1(a),104 they may also qualify 
individually as "firms" or collectively as an "industry". The characterization of mills, collectively, as 
"a cooperative or other association of such producers" may also be appropriate as Indian sugar mills 
are commonly owned and operated by cooperatives.105 The schemes leave recipient mills better off 
than they would otherwise have been. Finally, all are export -contingent, linking the availability of 
subsidies to the achievement of export quotas or targ ets, or to past export performance.106   
2. India misinterprets Article 9.1  
82. Australia and India agree on the elements required to satisfy the legal standard under 
Article 9.1(a) and that the "subsidy" definition in Article 1.1 of the SCM Agreement is releva nt to the 
interpretation of the terms "subsidy" and "subsidies" as they appear in the Agreement on 
Agriculture.107  However, Australia and India do not agree on what is required to demonstrate the 
elements of a subsidy for the purposes of Article  9.1(a). Sp ecifically, India bases its interpretation 
 
99 Australia's first written submission, paras. 372 –388. 
100 Agreement on Agriculture, Article 21.1. See also , Australia's first written submission, paras. 212 –
216; Australia's second written submission, para. 89.  
101 India's first written submission, para s. 91–92.  
102 Australia's first written submission, paras. 253 –284; Australia's second written submission, paras. 
94–95.  
103 Agreement on Agriculture, Article 9.1(a).  
104 Australia's first written submission, para. 275; Australia's response to Panel question 5 4, para. 25.  
105 Australia's first written submission, para. 296.  
106 Australia's second written submission, para. 96. See also , Australia's first written submission, paras. 
288–365. 
107 Australia's second written submission, paras. 98 –99; India's responses to P anel questions 29 (p. 21), 
54(a) (p. 9).  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  of the legal standard applicable under Article 9.1(a) on a flawed understanding of the two elements 
of the SCM Agreement's subsidy definition.108 
(a) Evidence of actual funds disbursements is not required  
83. India insists that because the SCM Agreement deems a subsidy to exist where "there is a 
financial contribution",109 Australia must provide evidence of actual disbursements of government 
funds to substantiate the existence of India's subsidies.110       
84. Australia disagrees. Article 9.1(a) concerns the "provision" of subsidies.  "To provide" 
funds, is "to make [them] avai lable", as, for example, when a government provides the legislative 
authority to make payments under a scheme or makes a relevant budgetary allocation.111  
85. Further, the immediate context of Article 9.1(a) within the Agreement on Agriculture makes 
clear that  the Agreement contemplates a subsidy being demonstrable on an allocation of funds alone. 
Specifically, Article 9.2(a)(i) provides that a Member's compliance with its scheduled export subsidy 
reduction commitments may be measured based on budgetary outlays  "allocated  or incurred."112  
86. Article 1.1(a)(1)(i) of the SCM Agreement, similarly, provides that " potential  direct 
transfers of [government] funds" may constitute a "financial contribution" for the purposes of a 
subsidy, thereby acknowledging that a subsid y may exist in situations where actual payments are 
prospective.113 In fact, the Appellate Body and previous panels have considered "conduct on the part 
of the government by which money, financial resources, and/or financial claims are made available 
to a r ecipient"114 sufficient to demonstrate a "direct funds transfer", and that the phrase 
encompasses situations in which some payments under a measure are yet to be made.115  
87. Australia does not accept either that the reference in Article 9.1(a) to "payments -in-kind" 
or the fact that the challenged measures involve "grants", support India's contention that only 
evidence of actual payments can demonstrate the existence of a "financial contribution" in relation 
to its export subsidies.116 The textual references Indi a relies on are simply examples that illustrate 
the variety of forms a "financial contribution" may take. 117   
88. India's understanding of what is required to demonstrate the existence of a financial 
contribution is, in any event, moot because Australia has provided evidence of actual payments to 
sugar mills under the challenged measures.118 
(b) Australia has demonstrated the existence of a "benefit"  
89. India also alleges that Australia has failed to conduct the market comparison necessary 
to demonstrate the exi stence of a "benefit" for the purposes of the subsidy definition in the 
SCM Agreement. Australia disagrees. Australia accepts that the market provides a useful benchmark 
against which to test the existence of a benefit.119 However, the market comparison exe rcise 
required in this context is simple because it is readily apparent that the market for financial services 
 
108 SCM Agreement, Articles 1.1(a) and 1.1(b).  
109 SCM Agreement, Article 1.1(a)(1) (emphasis added); India's first written submission, para. 107; 
India's second written submission, paras. 69, 76, 89.  
110 India's first wr itten submission, paras. 105 –109; India's second written submission, paras. 67 –89. 
111 Australia's second written submission, paras. 101, 105; Australia's opening statement at the second 
substantive meeting, para. 57.  
112 Agreement on Agriculture, Article 9.2(a)(i) (emphasis added); Australia's second written submission, 
para. 106.  
113 Australia's second written submission, para. 107.  
114 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 614; Australia's response to 
Panel question 59, para.  77. 
115 Panel Report, EC and certain member States – Large Civil Aircraft  (Article 21.5 – US), para. 6.290; 
Australia's response to Panel question 59, para. 77.  
116 India's second written submission, paras. 72 –74. 
117 Austral ia's opening statement at the second substantive meeting, paras. 49 –50, 60 –61.  
118 Australia's second written submission, paras. 112 –113; Australia's response to Panel question 59, 
para. 82.  
119 Australia's opening statement at the second substantive meeting,  para. 69.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  involving the provision of funds does not offer the sort of non -reciprocal gifts or grants available to 
sugar mills under the challenged measures .120  
3. India  has not established a defence under Article 9.4 in relation 
to the MAEQ scheme  
90. In response to Australia's prima facie  case that the MAEQ scheme is an Article 9.1(a) export 
subsidy, India has argued that the scheme falls within Article 9.4 of the Agreement on Agriculture. 
India has not substantiated that assertion with any evidence that the MAEQ scheme falls under either 
of Articles 9.1(d) or (e) of the Agreement, which identify the types of export subsidies to which the 
flexibility in Article 9.4 applies.      
91. India has pointed to the MAEQ scheme's notification, which partially replicates the language 
of Articles 9.1(d) a nd (e).121 However, that language represents the extent of the scheme's 
connection with the transport, freight and marketing subsidies to which Articles  9.1(d) and (e) apply. 
Merely pointing to WTO -consistent language in the scheme's notification is no substitute fo r an 
objective assessment of the scheme's design, operation and purpose – none of which reveals any 
link to the types of costs that Articles 9.1(d) and (e) contemplate.122  
92. To meet the legal standard applicable under Article 9.1(d), the subsidy in question must 
be provided for the distinct purpose  of covering "costs of marketing exports of agricultural products", 
including "the costs of international transport and freight". Under Article 9.1(e), there must be 
evidence of governmental action taken for the distinct purpose  of creating advantageous conditions 
for "internal transport and freight charges on export shipments" vis -à-vis domestic shipments. This 
relationship between the subsidy and the purposes identified in Articles 9.1(d) and (e) respectively 
must also be quantifiable, with the assistance provided reducing but not exceeding actual costs or 
charges.123 India agrees that subsidies that fall within Articles 9.1(d) and (e) must not exceed the 
costs incurred.124 
93. Australia has adduced compelling evidence th at the MAEQ scheme does not satisfy the 
legal standards applicable under Articles 9.1(d) and (e). The scheme's purposes, as indicated in its 
notification, are to help sugar mills offset the cost of buying sugarcane by satisfying debts owed to 
sugarcane far mers and to incentivize export by making eligibility to claim assistance conditional 
upon meeting an export target.125   
94. Moreover, the MAEQ scheme gives no indication of a link between assistance provided and 
actual costs of the kinds identified in Articles  9.1(d) and (e). The only metric used to calculate the 
subsidy's value is the number of tonnes of sugar exported.126 India's contention that the subsidies 
improve sugar mills' financial position and therefore ultimately reduce transport, freight and 
marketi ng costs reflects an unacceptably broad interpretation of the applicable legal standards, 
which require evidence of a direct relationship between relevant subsidies and costs of the kinds 
identified in Articles  9.1(d) and (e).127  
95. Despite asserting that it determined the value of MAEQ payments following significant 
stakeholder consultation, India has not adduced any probative evidence of such consultations and, 
consequently, of the relationship required by the legal standards applicable under Articles 9.1(d)  
and (e).128 Australia, on the other hand, has shown that the MAEQ scheme's design fails to ensure 
 
120 Australia's second written submission, para. 110; Australia's opening statement at the second 
substantive meeting, paras.  69–72. See also, Australia's response to Panel question 53, paras. 20 –22; 
Australia's first written submission, para. 269 . 
121 India's first written submission, paras. 119 –120, 122.  
122 Australia's response to Panel question 43, para. 128; Australia's second written submission, paras. 
128–133. 
123 Australia's second written submission, paras. 120 –122; Australia's response to Pane l question 56(a), 
para 39.  
124 India's response to Panel question 81, p. 14.  
125 Australia's second written submission, paras. 125, 130 –133.  
126 Australia's second written submission, para. 131.  
127 India's opening statement at the first substantive meeting, para. 15; Australia's second written 
submission, paras. 138 –140.  
128 India's opening statement at the first substantive meeting, para. 17; Australia's second written 
submission, paras. 141 –146; Au stralia's response to Panel question 82, paras. 104 –109.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  that the assistance provided does not exceed the actual transport, freight and marketing costs that 
sugar mills typically incur.129 
96. Finally, Australia does not  accept India's assertion that the proper characterization of 
Article  9.4 is as an "autonomous right" rather than a typical "exception" or "defence", or India's 
related argument that Australia bore the burden of both raising and proving the provision did n ot 
apply to the MAEQ scheme in its first written submission.130 To oblige a complainant to anticipate 
any provision a respondent may raise in its defence and to explain why that provision does not apply 
would place an unsustainable evidentiary burden on com plainants and compromise the efficiency of 
dispute settlement.131 If a respondent asserts, in response to evidence and argument that it 
maintains Article 9.1(a) export subsidies, that those subsidies in fact fall within the meaning of 
Articles 9.1(d) or (e) , it is for the respondent to prove the affirmative of that assertion.132 India's 
argument is, in any case, moot, given Australia's comprehensive evidence and argument that the 
scheme does not satisfy the legal standards applicable under Articles 9.1(d) and  (e).133   
B. INDIA PROVIDES PROHIBITED SUBSIDIES WITHIN THE MEANING OF ARTICLE  3.1(A)  OF 
THE SCM  AGREEMENT  
97. The Agreement on Agriculture does not authorize India's export subsidies, which therefore 
remain subject to the disciplines of the SCM Agreement and are inconsistent India's obligations 
under Articles 3.1(a) and 3.2.   
1. India's production subsidies, buff er stock subsidies and its 
MAEQ and DFIA schemes are Article 3.1(a) subsidies  
98. A measure that satisfies the definition of a "subsidy" in Article 1.1 of the SCM Agreement 
will involve a "financial contribution", by a "government or public body", that confers  a "benefit" on 
its recipient.  Article 3.1(a) "prohibits subsidies that are conditional upon… or are dependent for their 
existence on", or are "tied to" export performance.134  
99. Under each of India's production and buffer stock subsidies and its MAEQ scheme, there is 
a "financial contribution" in the form of a "government practice" involving the "direct transfer of 
funds" within the meaning of Article 1.1(a)(1)(i) of the SCM Agreement. Each scheme involves the 
transfer of funds from a government agency  either to sugarcane farmers on behalf of mills or to 
sugar mills directly. Under the DFIA scheme, there is a "financial contribution" within the meaning 
of Article 1.1(a)(1)(ii), with a government agency foregoing revenue by waiving the customs duties 
sugar mills would otherwise owe it.135 All schemes confer a "benefit" on recipient mills, leaving them 
better off, with respect to debts owed, funds accrued or tax liability, than they would otherwise 
be.136 All schemes are export -contingent, with the availabil ity of financial assistance tied to export 
performance.137 
2. India misinterprets the legal standard applicable for 
establishing the existence of an Article 1.1 subsidy  
100.  In response to Australia's prima facie  case that India maintains export subsidies contra ry 
to its obligations under Articles 3.1(a) and 3.2 of the SCM Agreement, India repeats its argument 
that evidence of actual funds transfers is required to demonstrate the existence of a "financial 
 
129 Australia's second written submission, paras. 147 –169; Australia's response to Panel question 84, 
para. 115.  
130 India's opening statement at the second substantive meeting, paras. 77 –83; Australia' s responses to 
Panel questions 92(a) (paras. 143 –148), 92(b), (paras. 149 –153, 156).  
131 Australia's response to Panel question 92(b), para. 152; Panel Report , India – Export Related 
Measures , para. 7.11.  
132 Australia's second written submission, para. 119, citing Appellate Body Report, US – Wool Shirts and 
Blouses , p. 14; Australia's response to Panel question 92(b), para. 152.  
133 Australia's response to Panel question 92(b), para. 154.  
134 Australia's second written submission, paras. 203 –204.  
135 Australia's first written submission, paras. 394 –397, 405 –408, 413 –416, 426.  
136 Australia's first written submission, paras. 398 –400, 409, 417, 427 –427.  
137 Australia's first written submission, paras. 401 –403, 410 –411, 420 –422, 430 –431. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  contribution" for the purposes of the "subsidy" definition  in Article  1.1 of the SCM Agreement.138 
India also recycles its argument that a complex market comparison is needed to establish the 
"benefit" component of the Article 1.1 subsidy definition.139  Australia disagrees, for the reasons 
outlined above in relati on to India's subsidies under Article  9.1(a) of the Agreement on 
Agriculture.140 
3. India misinterprets Article 27 and Annex VII  
101.  India contends that it is exempt from the export subsidy prohibition in Article 3.1(a) of the 
SCM Agreement by virtue of the flexibility Article  27.2 of the Agreement affords developing country 
Members.141 Australia disagrees. Article 27.2(b) provides that the Article  3.1(a) prohibition shall not 
apply to "other developing country Members" – i.e. those not referred to in Annex VI I to the 
Agreement – for a period of eight years after the WTO Agreement's entry into force. On a plain 
reading of the text of the provision itself, Article  27.2(b) expired  on 1 January 2003.  
102.  Accepting "the clarity of the plain textual meaning"142 of Artic le 27.2(b) is consistent with 
customary rules of treaty interpretation143 and does not render, as India argues, parts of the 
SCM Agreement useless or redundant vis -à-vis some developing country Members.144 Nor does it 
undermine the mandatory language of Anne x VII(b), pursuant to which listed developing countries 
"shall be subject to the provisions which are applicable to other developing country Members"145 
upon their graduation from the Annex. The mandatory language in Annex VII(b) concerns the 
applicability , to graduating developing country Members, of Article 27.2(b). It does not concern the 
provision's content, including its temporal limit. Moreover, as the inclusion in Annex VII(b) of the 
sub-clause "which are applicable to other developing country Members " makes clear, Article 27.2(b) 
applies to graduates from Annex VII(b) on exactly the same terms, including with respect to its 
expiry, as it does for "other developing country Members."146  
103.  Further, a plain reading of Article 27.2(b) does not, as India clai ms, frustrate a harmonious 
reading of Article  27 as a whole.  India contends, for example, that Article  27.4 anticipates different 
eight-year export subsidy phase out periods for different categories of developing country 
Member.147 Australia disagrees. Art icle 27.4 both cross -references Article  27.2(b) and refers twice 
to "the eight-year period".148 As this use of the definite article "the" makes clear, Article 27.4 refers 
to the specific  eight-year period introduced in Article  27.2(b).149  
104.   Far from denying developing country Members equal treatment as India argues,150 a plain 
reading of Article 27.2(b) is consistent with the different levels of flexibility that Article  27 and Annex 
VII afford developing country Members according to their circumstances.151  
105.  India graduated from Annex VII(b) to the SCM Agreement in 2017. It was, thereafter, 
subject to the export subsidies prohibition in Article 3.1(a). Until 2017, India benefited from an 
extended period of exemption from the Agreement's export subsidies prohib ition appropriate to its 
evolving income level.152 
 
138 India's first written submiss ion, paras. 146 –147. See also, India's second written submission, 
paras.  67–89. 
139 India's first written submission, para. 147. See also , India's second written submission, paras. 90 –
97.  
140 See paragraphs  83 to 88 above.  
141 India's first written submission, paras. 129 –145.  
142 Appellate Body Report, Peru – Agricultural Products, para. 5.94.  
143 See footnote 40 above.  
144 India's first written submission, para. 137.  
145 SCM Agreement, Annex VII(b) (emphasis added).  
146 Australia's second written submission, paras. 185 –190.  
147 India's first written submission , para. 141.  
148 SCM Agreement, Article 27.4 (emphasis added).  
149 Australia's second written submission, para. 192.  
150 India's first written submission, paras. 139 –140. 
151 Australia's second written submission, paras. 198 –199. 
152 Australia's second written subm ission, paras. 195 –201.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  4. The DFIA scheme does not fall within footnote 1  
106.  India's DFIA scheme is, as outlined above, an export subsidy within the meaning of 
Article  9.1(a) of the Agreement on Agriculture.153 The DFIA scheme is not  authorized by the 
Agreement on Agriculture. It does not, moreover, fall within the carve -out, in footnote 1 to the 
SCM Agreement, from that Agreement's definition of a "subsidy". The DFIA scheme 
therefore  remains subject to the prohibition on export subsi dies in Articles  3.1(a) and 3.2 of the 
SCM Agreement.  
107.  Footnote 1 to the SCM Agreement, read together with Annex I(i), provides that, a measure 
will not be deemed to be a subsidy if it comprises: (i) a remission or drawback, including full or 
partial exempt ion or deferral; (ii) of import charges; (iii) on imported inputs consumed in the 
production of an exported product; and (iv) the remission or drawback is not in excess of those 
charges levied on the inputs.154  
108.  To satisfy the third element of this legal st andard a measure must follow a sequencing that 
ensures it applies to imported inputs that are " consumed  in the production of [an] exported 
product".155 As the guidance in Annexes II to III to the SCM Agreement articulates, inputs so 
"consumed" include, rele vantly, those "physically incorporated"156, in the sense that they are 
"physically present",157 in the exported product.158  
109.  Australia recalls that the DFIA scheme permits mills that exported white sugar during a 6 -
month period in the 2017 –18 sugar season to import raw sugar duty free during two subsequent 
seasons.159 This sequencing reverses the logic of footnote 1, read with Annex I(i), and interpreted, 
as footnote 1 directs, in context with the guidance in Annexes II to III to the SCM Agreement. Raw 
sugar im ported from 2019 to 2021 cannot be either "physically incorporated" or "physically present" 
in refined sugar exported in 2018.160  
110.  Additionally, the existence of a verification system to ensure that the DFIA scheme's 
beneficiaries do not receive duty waiver s for more imported raw sugar than they use to produce 
white sugar exports cannot guarantee that the scheme falls within footnote 1 to the SCM Agreement.  
The verification system associated with the DFIA scheme, regardless of its efficacy in preventing 
excess remissions, cannot alter the scheme's inconsistency with the temporal requirements of 
footnote 1, read with Annex I(i), to the SCM Agreement.161  
111.  Austr alia does not, as India claims, argue that footnote 1, read with Annex I(i), is so 
restrictive as to apply only when precisely the same  inputs imported duty free are physically present 
in an exported product.162 Australia recognises that Annex I(i) allows " where appropriate" for 
"substitution."163 This flexibility makes sense where domestic and imported inputs are commingled 
in the production of products destined for domestic and export markets. However, it does not follow 
that, in allowing an equivalent quan tity of home market inputs to be substituted for imported inputs, 
Annex I(i) to the SCM Agreement also permits the substitution of future  imported inputs for 
equivalent quantities of imported inputs used to produce past exports.164  
112.  Finally, Australia does not accept India's contention, based on its position that footnote 1 
to the SCM Agreement (read with Annex I(i)) is not a typical "exception" or "defence", that Australia 
bore the burden of proving no later than in its first written submission that the DFI A scheme did not 
 
153 See paragraphs  79 to 81 above.  
154 Australia's response to Panel question 58(b), para. 65; Australia's second written submission, 
para. 211, citing Panel Report, India – Export Related Measures , para. 7.178, Table 2.  
155 SCM Agreement, Annex I(i) (emphasis added).  
156 SCM Agreement, footnote 61.  
157 SCM Agreement, Annex II(II)(3).  
158 Australia's response to Panel question 85, paras. 119 –123.  
159 See paragraph  25 above.  
160 Australia's response to Panel question 85, paras. 119 and 126.  
161 Australia's comments on India's response to Panel question 88, paras. 49 –52. 
162 India's opening statement at the second substantive meeting, para. 90; Australia's closing statement 
at the second substantive meeting, para. 24.  
163 SCM Agreement, Annex II(I)(2).  
164 Australia's comments on India's response to Panel question 88, paras. 53 –54. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  fall within footnote 1.165  As Australia articulated with respect to the allocation of burden under 
Article  9.4 of the Agreement on Agriculture,166 the characterization of a provision other than as a 
typical exception or affirmative defence does not determine which party bears the i nitial burden of 
raising  that provision. The proper characterization of footnote 1 and the implications of that 
characterization, including for the allocation of burden of proof, is in any case moot. Australia has 
addressed comprehensively the question of whether the DFIA scheme falls within footnote 1 and 
India had ample opportunity to respond.167 
V. INDIA HAS FAILED TO NOTIFY ITS DOMESTIC SUPPORT IN FAVOUR OF 
SUGARCANE PRODUCERS AND EXPORT SUBSIDIES FOR SUGAR IN BREACH OF ITS 
WTO OBLIGATIONS  
113.  Australia has established that India maintains domestic support for sugarcane producers 
and export subsidies for sugar. India has not submitted notifications of these measures, in breach 
of its obligations under the Agreement on Agriculture and the SCM Agreement, or, in  the alternative, 
under the GATT 1994.  
A. INDIA'S NOTIFICATION OBLIGATIONS UNDER THE AGREEMENT ON AGRICULTURE , THE 
SCM  AGREEMENT AND THE GATT  1994  
1. Agreement on Agriculture  
114.  Article 18 of the Agreement on Agriculture provides, in mandatory terms, that:  
• progress in the implementation of commitments negotiated under the Uruguay 
Round reform programme shall be reviewed by the Committee on Agriculture 
(Article 18.1);  
• the review process shall be undertaken on the basis of notifications submitted by 
Members  in relation to such matters and at such intervals as shall be determined 
(Article 18.2);  
• in addition to the notifications to be submitted  to inform the review process 
(under Article 18.2), any new domestic support measure, or modification of an 
existing meas ure, for which exemption from reduction is claimed shall be notified 
promptly by Members (Article 18.3); and  
• domestic support notifications shall contain details of the relevant new or modified 
measure and its conformity with criteria set out in in the Agr eement on Agriculture 
(Article 18.3).  
115.  Accordingly, India is required to submit notifications concerning its domestic support and 
export subsidies to the Membership through the Committee on Agriculture. Notifications are essential 
for ensuring transparency and enabling the Committee to monitor the implementation of Members' 
commitments effectively.168 
(a) India misinterprets Article 18 of the Agreement on Agriculture  
116.  India claims that Article 18 of the Agreement on Agriculture does not place any obligations 
on Members, but merely grants the Committee on Agriculture the discretion to determine how the 
review process is conducted.169 In making this argument, India ignores the mandatory language and 
overall scheme of Article 18. Contrary to India's as sertion, the Committee's role is not to be 
determined as a matter of discretion. Rather, the Committee shall review Members' progress in the 
implementation of their commitments and its review shall be undertaken on the basis of notifications 
 
165 India's opening statement at the second substantive meeti ng, para. 89.  
166 See paragraph  96 above.  
167 Australia's comments on India's response to Panel question 86(a), paras. 44 –46. 
168 Australia's first written  submission, paras. 437 –443; Australia's response to Panel question 44(b), 
para. 141; Australia's second written submission, paras. 223 –224. 
169 India's first written submission, para. 158.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  to be submitte d by Members.170 If Members had no obligation to submit notifications, the Committee 
would be unable to discharge its mandatory function.  
117.  Further, India argues that Committee document G/AG/2, which sets out the notification 
requirements and formats under Article 18,171 uses hortatory language that is suggestive in nature 
and does not give rise to a binding obligation.172 India's argument is without merit. The document 
G/AG/2 is not a treaty -level instrument and does not modify Members' obligations under Article 18. 
Australia 's claim is under Article 18, not under G/AG/2.173 
118.  Australia asks the Panel to find that Article 18 imposes binding notification obligations on 
Members.  
2. SCM Agreement  
119.  Article 25 of the SCM Agreement requires India to notify the Members of subsidies falling 
within Article 1.1, which are specific within the meaning of Article 2, that India grants or maintains 
within its territory.174 Such notifications must be submitted not later than 30 June of each year and 
must conform to Articles 25.2 to 25.6.175 
120.  India does not dispute that Article 25 imposes mandatory notification obligations.176 
3. GATT 1994  
121.  India is obliged under Article  XVI:1 of the GATT 1994 to notify other Members of the extent, 
nature and estimated effects on trade, of any subsidy it grants or maintains, including income or 
price support, which operates directly or indirectly to increase exports of any product from its 
territory.177 
122.  India does not dispute that Article XVI:1 imposes mandatory notification obligations.178  
B. INDIA HAS BREACHED ITS NOTIFICATION OBLIGATIONS BY FAILING TO NOTIFY ITS 
DOMESTIC SUPPORT IN FAVOUR OF SUGARCANE PRODUCERS AND ITS EXPORT SUBSIDIES 
FOR SUGAR  
123.  India does not dispute that it last notified its domestic support to sugarcane in its 1995 –
96 notification to the Committ ee on Agriculture and that its most recent notification of its export 
subsidies for sugar was in 2009 –10, which covered the marketing years 2004 –05 to 2009 –10. Thus, 
India has not met its legal obligations under the Agreement on Agriculture and the SCM Agr eement 
to notify the Membership of its domestic support for sugarcane producers and its export subsidies 
for sugar.179 
124.  In the alternative, India is in breach of its obligation pursuant to Article XVI:1 of the 
GATT  1994 to notify Members of India's subsidies  that operate directly or indirectly to increase its 
sugar exports.180 
 
170 Agreement on Agriculture, Articles 18.1 and 18.2.  
171 G/AG/2, 30 Jun e 1995, p. 24.  
172 India's first written submission, para. 158.  
173 Australia's response to Panel question 44(b), para. 140; Australia's second written submission, 
paras. 225 –229. 
174 SCM Agreement, Article 25.2; Australia's first written submission, paras.  444–446.  
175 SCM Agreement, Article 25.1.  
176 India's first written submission, para. 157.  
177 Australia's first written submission, paras.  447–448. 
178 India's first written submission, para. 157.  
179 Australia's first written submission, para. 450 –458. 
180 Australia's first written submission, paras. 459 –466. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  VI. CONCLUSION  
125.  For the foregoing reasons, Australia submits that:  
• Through its market price support and other non -exempt domestic support, India 
maintains domestic support for sugarcane producers that exceeds the de minimis  
level of 10 per cent of the total value of production of sugarcane contrary to 
India's obligation u nder Article 7.2(b) of the Agreement on Agriculture.  
• India's production and buffer stock subsidies operating in conjunction with the 
MIEQ orders, and its MAEQ and DFIA schemes constitute:  
– export subsidies within the meaning of Article 9.1(a) of the Agreeme nt 
on Agriculture, and are therefore inconsistent with India's obligations 
under Articles 3.3 and 8 of the Agreement on Agriculture, or, in the 
alternative Articles 8 and 10.1; and  
– prohibited export subsidies that are inconsistent with India's obligations 
under Articles 3.1(a) and 3.2 of the SCM Agreement.  
• By failing to notify its annual domestic support for sugarcane and sugar 
subsequent to 1995 –96 or to submit an export subsidy notification since 2009 –
10, India has acted inconsistently with its obligation s under Articles  18.2 and 18.3 
of the Agreement on Agriculture and Article 25 of the SCM Agreement, or, in the 
alternative, Article XVI:1 of the GATT 1994.  
126.  Australia respectfully requests the Panel to find accordingly.  
  
  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
- 57 - ANNEX A  Summary o f Australia's calculations of India's AMS for sugarcane in the sugar seasons 2014 –15 to 2018–19 
Option 1  Option 2  
  
Notes:   
1. For calculations, refer to Australia's domestic support calculations, Microsoft Excel workbooks, Revision 3 ( Exhibit AUS-1 (Revision 3) ).  
Unit 2014-15 2015-16 2016-17 2017-18 2018-19
Value of production Million Rs. 784,330.00  746,600.00  724,410.00  989,670.00     1,055,920.00  
MPS using 
AAP(FRP plus average 
premium) Million Rs. 791,939.81  815,274.15  703,842.00  1,006,325.89  1,075,845.33  
—as a percentage of
production value Per cent 100.97% 109.20% 97.16% 101.68% 101.89%
MPS using 
AAP(FRP or SAP)
Million Rs. 903,751.21  880,418.37  815,045.23  1,072,684.68  1,110,085.41  
—as a percentage of
production value Per cent 115.23% 117.92% 112.51% 108.39% 105.13%
—difference between 
MPS using AAP(FRP plus 
average premium) and 
AAP(FRP or SAP) Per cent 14.26% 8.73% 15.35% 6.71% 3.24%
Additional non-exempt
domestic support
—Andhra Pradesh
(Annex B-01) Million Rs. 66.00 66.00
—Tamil Nadu
(Annex B-02) Million Rs. 1364.30 980.30
—Karnataka
(Annex B-03) Million Rs. 0.10
Total additional
non-exempt Million Rs. 66.00 66.00 0.00 1364.40 980.30
AMS using
AAP(FRP+SAP) and 
other non-exempt domestic 
support Million Rs. 903,817.21  880,484.37  815,045.23  1,074,049.08  1,111,065.71  
—as a percentage of 
production value Per cent 115.23% 117.93% 112.51% 108.53% 105.22%
—difference between AMS 
including other non-exempt 
domestic support and
MPS using AAP(FRP+SAP) Per cent 0.01% 0.01% 0.00% 0.14% 0.09%
Unit 2014-15 2015-16 2016-17 2017-18 2018-19
Value of production Million Rs. 965,290.00  958,640.00  946,980.00  1,173,510.00  1,230,490.00  
MPS using 
AAP(FRP plus average 
premium) Million Rs. 791,939.81  815,274.15  703,842.00  1,006,325.89  1,075,845.33  
—as a percentage of
production value Per cent 82.04% 85.04% 74.32% 85.75% 87.43%
MPS using 
AAP(FRP or SAP)
Million Rs. 903,751.21  880,418.37  815,045.23  1,072,684.68  1,110,085.41  
—as a percentage of
production value Per cent 93.62% 91.84% 86.07% 91.41% 90.21%
—difference between 
MPS using AAP(FRP plus 
average premium) and 
AAP(FRP or SAP) Per cent 11.58% 6.80% 11.74% 5.65% 2.78%
Additional non-exempt
domestic support
—Andhra Pradesh
(Annex B-01) Million Rs. 66.00 66.00
—Tamil Nadu
(Annex B-02) Million Rs. 1364.30 980.30
—Karnataka
(Annex B-03) Million Rs. 0.10
Total additional
non-exempt Million Rs. 66.00 66.00 0.00 1364.40 980.30
AMS using
AAP(FRP+SAP) and 
other non-exempt domestic 
support Million Rs. 903,817.21  880,484.37  815,045.23  1,074,049.08  1,111,065.71  
—as a percentage of 
production value Per cent 93.63% 91.85% 86.07% 91.52% 90.29%
—difference between AMS 
including other non-exempt 
domestic support and
MPS using AAP(FRP+SAP) Per cent 0.01% 0.01% 0.00% 0.12% 0.08% 
  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
- 58 - 2. Australia considers there are two potential options for India's total value of production, both of which are reasonable. Opti on 1 uses as the value 
of production the figures in Row  4.1 "Sugarcane" of India's Ministry of Statistics and  Programme Implementation, National Accounts Statistics 2020, 
Statement 8.1.2 Crop -wise value of output ( Exhibit JE -147). Option  2 uses as the value of production the sum of the figures in Rows 4.1 
"Sugarcane" and 4.2 "gur" of Exhibit JE -147. See Australia 's response to Panel question 60, paras. 1 –14.  
3. "MPS" is market price support; "Rs" is Indian Rupees.  
4. References to Annexes are to Annexes in Australia's first written submission.WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
- 59 - 
 
  ANNEX  B-3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF GUATEMALA  
I. INTRODUCTION  
1. Guatemala's legal claims in this dispute concern two main aspects: (i) India's domestic support 
for sugarcane producers, which is provided in amounts greatly exceeding India's permitted de 
minimis level of 10%; and (ii) India's export subsidies for sugar, which India maintains despite the 
fact that it has no export subsidy entitlements inscribed in its World Trade Organization ("WTO") 
Schedule of Concessions.  
2. At the heart of India's regime is the Market Price Support ("MPS") provided by the Indian 
Govern ment to sugarcane producers through the federal -level Fair and Remunerative Price ("FRP") 
and, in the case of certain Indian States, the State Advised Price ("SAP"). The FRP and SAP are 
government -mandated prices for sugarcane purchases. Additionally, Indi a imposes stockholding 
requirements for sugar, subsidized sugar buffer stocks, as well as subsidies for sugar mills that 
comply with export quotas.   
3. India's system of administered prices has produced dire consequences for sugar mills, which 
must purcha se sugarcane at the high prices mandated by the Government. Indian authorities have 
fixed the FRP and SAP at such high levels that sugar mills can no longer afford to pay in full this price 
to sugarcane growers.1 This has caused an accumulation of overdue  payments (or arrears) that sugar 
mills owe to sugarcane growers. The Indian Sugar Mills Association ("ISMA") calculates that on 31 
March 2019 sugarcane arrears reached "historic levels" of Indian Rupees ("INR") 30'000 crore, 
approximately  4.2 billion US Dollars ("USD").2 Sugarcane arrears jeopardize the livelihood of India's 
50 million sugarcane farmers, who struggle to make a living without payment for their produce.3 
India's measures, thus, could achieve the exact opposite result than the alleged inte ntion of 
addressing the "livelihood concerns of India's largely low -income, resource -poor sugarcane farmers" 
as argued by India in its first written submission.4  
4. India's sugarcane and sugar regime functions as a vicious circle, in which one trade -distorting 
policy engenders problems that must be addressed through additional trade -distorting policies. 
Needless to say, this regime is financially unsustainable in the long run for the Indian Government 
and other sugar producing and exporting countries like  Guatemala.5 Guatemala is part of the WTO 
group of "small and vulnerable economies". This reflects Guatemala's status as a developing country 
with an economy that relies on just a few productive sectors. The sugar industry is one of those 
sectors. In addi tion, the sugar sector in Guatemala creates over 63'000 direct jobs and over 314'000 
indirect jobs.6 Hence, the sugar industry is of the utmost importance for Guatemala. While Guatemala 
understands the importance of supporting low -income farmers, any such  support measures must 
comply with WTO obligations.7 For the reasons set out below, Guatemala does not consider that 
India's domestic support for sugarcane and export subsidies for sugar comply with India's obligations 
under the Agreement on Agriculture a nd the SCM Agreement.  
 
1 Financial Express, "Centre not appreciating mills 'huge financial crisis' ", 20 April 2018, available at 
https://www.financialexpress.com/market/commodities/centre -not-appreciating -mills-huge-financial -
crisis/1139014/ , last accessed on 15.11.2020, Exhibit GTM -15. 
2 See In dia Sugar Mills Association, Presentation during the brainstorming session under the 
Chairmanship of Joint Secretary (sugar), 11 June 2019, Exhibit JE -12, p. 10.  
3 Frontline, "Bitter glut ", available at:  
https://frontline.thehindu.com/thenation/agriculture/article24321068.ece , last accessed on 15.11.2020, Exhibit 
GTM-43. The Hindu, "Sugarcane farmers demand settlement of  arrears ", 27 June 2018, 
https://www.thehindu.com/news/national/karnataka/sugarcane -farmers -demand -settlement -of-
arrears/art icle24265636.ece , last accessed on 15.11.2020, Exhibit GTM -44. 
4 India's first written submission, para. 2.  
5 The Wall Street Journal 2019, Exhibit GTM -2. 
6 ASAZGUA, Exhibit GTM -10, p. 3.  
7 Guatemala's opening statement at the first substantive meeting, paras. 2.10 – 2.11. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
- 60 - 
 
  II. ROADMAP TO THIS EXECUTIVE SUMMARY  
5. Guatemala's integrated executive summary is structured as follows:  
▪ Section III addresses India's request for a preliminary ruling.  
▪ Section IV explains that India's lack of cooperation in these proceedings does not 
affect the Panel's ability to make an objective assessment under Article 11 of the 
DSU.  
▪ Section IV addresses Guatemala's legal claim that India's domestic support measures 
are inconsistent with India's obligations under Article 7.2(b) of the Agreement on 
Agriculture.  
▪ Section V contains Guatemala's legal claim that India's export subsidies are 
inconsistent with Articles 3.3, 8, and 9.1 of the Agreement on Agriculture, and 
consequently, also with Article 3.1(a) of the SCM Agreement.   
▪ Finally, in Section VI, Guatemala presents its specific requests for legal findings and 
recommendations from the Panel.  
III. INDIA'S REQUEST FOR A PRELIMINARY RULING  
6. In its first written submission, India requested the Panel to find that certain measures are 
outside of the Panel's terms of reference either because they allegedly expired prior to the 
establishment of the Panel, or because they were allegedly enacted after the establishment of the 
Panel.8  
7. Guatemala argued that India's request for a preliminary ruling was without legal basis. With 
respect to the measures that allegedly expired prior to the Panel establishment, Guatemala noted 
that India erroneously eq uated "measures" with "legal instruments", which are two different legal 
concepts. A measure is an act or omission of a WTO Member, the existence of which is demonstrated 
through legal instruments or other evidence.9 Consequently, the expiry of a legal in strument is not 
the same as the expiry of a measure.10 This is particularly important with respect to legal claims 
involving domestic support under the Agreement on Agriculture, where complainants must 
necessarily rely on historical data.11 Moreover, even if a measure had expired before the 
establishment of the Panel, this "is not dispositive of the question whether the panel can address 
claims in respect of that measure".12 Nonetheless, none of the measures at issue had expired.13  
8. With respect to the m easure that were allegedly enacted after the Panel establishment, the 
MAEQ Scheme 2019, Guatemala argued that this measure is properly within the Panel's terms of 
reference because the Panel's terms of reference, as expressed in Guatemala's Panel request, are 
broad enough to include the MAEQ Scheme 2019; it is of the same essence as the export subsidies 
identified in Guatemala's Panel request; and the inclusion of the MAEQ Scheme 2019 in the Panel's 
terms of reference is necessary to secure a positive solut ion to the dispute.14 
9. In its preliminary rulings dated 9 November 2020 and 14 December 2020, the Panel rejected 
India's request and found that the relevant measures were within the Panel's terms of reference.  
IV. INDIA'S LACK OF COOPERATION IN THESE PROCEEDINGS DOES NOT AFFECT THE 
PANEL'S ABILITY TO MAKE AN OBJECTIVE ASSESSMENT  UNDER ARTICLE 11 OF THE 
DSU 
10. India's lack of cooperation has permeated every single stage of these proceedings. For 
example, when the Pa nel or the complainants have posed direct questions to India on matters related 
 
8 India's first written submission, paras. 41 -46. 
9 Appellate Body Report,  US – Corrosion -Resistant Steel Sunset Review , para. 81. See Guatemala's 
comments on India's request for a preliminary ruling, para. 10.  
10 Guatemala's comments on  India's response regarding India's preliminary ruling request, para. 5.  
11 Panel Report, China – Agricultural Producers , para. 1.3.  
12 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – 
US), para. 268 referring to Appellate  Body Report, US – Upland Cotton , paras. 269 -272. 
13 Guatemala's comments on India's response regarding India's preliminary ruling request, para. 5.  
14 Ibid. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
- 61 - 
 
  to the operation and sources of the FRP, SAP, and other measures providing domestic support, India 
has deliberately decided not to answer the specific questions15, answered vaguely16, or answered 
late17.  
11. In India's view, its conduct is justified because the burden to make a prima facie  case under 
the Agreement on Agriculture lies on the complainants, and thus, the complainants are "best placed 
to explain the cal culations they have sought to adopt".18 However, t he fact that the complainants 
bear the burden of making a prima facie  case does not liberate the respondent from its obligation to 
assist the Panel in discharging its duty under Article 11 of the DSU to mak e an objective assessment 
of the matter before it, including an objective assessment of the facts. In the light of Article 3.10 of 
the DSU, "[c]ollaboration from parties to a dispute is essential for a panel to be able to discharge its 
function of making ' an objective assessment of the matter before it'".19  
12. India also argues that, because of confidentiality concerns, it cannot share information 
expressly requested by the Panel with respect to estimated costs of marketing and transportation in 
the conte xt of sugar exports.20 Guatemala notes that confidentiality concerns cannot be invoked as 
valid grounds for withholding information that is expressly requested by the Panel. Paragraph 2.3 of 
the Working Procedures offers the possibility of adopting additio nal procedures for the treatment and 
handing of confidential information at the request of any Party. India chose not to avail itself of these 
possible procedures. India's choice, however, cannot be invoked by India as a justification for not 
providing the  information requested by the Panel.21 
13. In any event, India's lack of cooperation and collaboration does not affect the Panel's ability 
to make an objective assessment  of the legal and factual issues before it; nor has this lack of 
cooperation in any wa y affected the ability of the complainants to make a prima  facie case of violation 
under the Agreement on Agriculture and the SCM Agreement. As a matter of fact, the complainants 
have provided significant argument and evidence, including over 170 joint exh ibits, individual 
exhibits22, and detailed calculations23 to make a prima facie  case of violation under the said 
agreements.  
V. INDIA'S DOMESTIC SUPPORT FOR SUGARCANE FARMERS IS INCONSISTENT WITH 
ARTICLE 7.2(B) OF THE AGREEMENT ON AGRICULTURE  
A. Introduction  
14. Pursuant to paragraph 1 of Annex 3 of the Agreement on Agriculture, domestic support can be 
provided in the form of Market Price Support ("MPS"), non -exempt direct payments, or any other 
subsidy not exempted from the reduction commitment ( "other non -exempt policies"). India provides 
domestic support in the form of MPS, through the FRP and SAP, and in the form of non-exempt direct 
payments and other non -exempt policies, through other federal and state -level measures .24  
15. In accordance wit h Article 7.2(b) of the Agreement on Agriculture, domestic support by 
developing countries that did not inscribe reduction commitments in their Schedules, such as India25, 
may not exceed 10% of the value of production of the relevant basic agricultural pro duct (in this 
case, sugarcane). India's domestic support from sugar season 2014/2015 to sugar season 
2018/2019 has reached levels that greatly exceed these limits,  ranging from 86% to 94%26, or 
alternatively, from 105% to 118%27, depending on the figures used for the calculation of total 
 
15 See e.g. India's answer to Panel's questions 6(a) and (b), 7, 45, 64, 66, 70 (c), 71(a) -(d) and 72.  
16 See e.g. India's answers to Panel's questions 5(a) and (b), 62, 63(b), 70(a), 74(b) and (c).  
17 India responded to Guatemala's questions after the second substantive on 29 April 2021, seven days 
after the date stipulated by the Pa nel. See Guatemala's letter dated 28 April 2021 on India's lack of response to 
Guatemala's questions.  
18 See e.g. India's response to Panel's question 72.  
19 Panel Report, Argentina – Import Measures , para. 6.31.  
20 See e.g. India's answer to Panel's questi on 82(c).  
21 Guatemala's closing statement at the second substantive meeting, para. 3.6.  
22 For example, Guatemala has provided over 50 exhibits. Australia has provided over 100 exhibits.  
23 See Exhibit GTM -45 (Revision 12 May 2021).  
24 Guatemala's first writ ten submission, paras. 73 – 99.  
25 India's response to Panel's question 46.  
26 See Exhibit JE – 174. 
27 Guatemala's updated calculations of India's AMS, Exhibit GTM -45, Revision 12 May 2021.   WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
- 62 - 
 
  value of sugarcane production.28 India, therefore, acts inconsistently with its obligations under 
Article  7.2(b) of the Agreement on Agriculture.  
16. In the following sub -sections, Guatemala desc ribes the measures at issue, explains that these 
measures provide domestic support in excess of the de minimis  limits, and, finally, responds to 
India's arguments.  
B. The FRP, the SAP and India's other domestic support measures  
17. With respect to MPS, since 2009, India has imposed administered prices for sugarcane 
purchases, which, at the federal level, are called the FRP, and at the State level, the SAP.29 The FRP 
and SAPs are fixed by the Indian Government and must be paid by sugar mills.30 If sugarcane is 
purchased below the administered prices, India imposes penalties that may include imprisonment.31 
18. The FRP is composed of two elements:32 
• A base price  in INR per quintal33 for sugarcane with a recovery rate equivalent or below an 
established basic recovery rate. The recovery rate refers to the amount of sugar that can be 
extracted from sugarcane.34 Sugarcane with a recovery rate equivalent or below the basic 
recovery rate r eceives the base price of the FRP.  
• A premium  that increases in proportion to the recovery rate. Sugarcane with a recovery rate 
above the basic recovery rate would receive the FRP base price plus a premium. As the 
recovery rate is normally an indication of the quality of the sugarcane, this system seeks to 
encourage production of higher quality sugarcane.  
19. The FRP operates at the level of the Central Government and has a nationwide coverage. 
Furthermore, six Indian States also impose their own administer ed prices for sugarcane in the form 
of SAP. These six States are Bihar, Haryana, Punjab, Tamil Nadu, Uttarakhand, and Uttar Pradesh. 
These six States collectively account for 60% of total sugar production in India.35 All of these States, 
with the exception  of Tamil Nadu36, apply a State base price that can vary depending on the variety 
of sugarcane. Sugarcane of early and mid -varieties receives a higher SAP than sugarcane of normal 
varieties or unrecommended varieties.37 Assured of receiving the high FRP an d, in certain states, the 
even higher SAPs, farmers are encouraged to produce sugarcane instead of other crops.38 
20. In addition to the FRP and the SAP, the Central and State Governments provide other measures 
to assist sugar mills and sugarcane producers . These measures include direct payments, soft loans, 
and revenue foregone, among other things.39 For example, Andhra Pradesh foregoes fiscal revenue 
to the benefit of sugarcane growers. In essence, payments of purchase tax in the amount of INR 
6/quintal n ormally made by sugar mills to the State of Andhra Pradesh are re -directed to sugarcane 
producers so that they can receive income additional to the FRP for their sugarcane.40 Similarly, 
Tamil Nadu provides "incentive payments" to support the transition fro m the SAP to the Revenue 
 
28 See Guatemala's answer to Panel's question 60, and Guatemala's comments on India's answer to 
Panel's question 60.  
29 Guatemala's first written submission, paras. 55, 72.  
30 Guatemala's first written submission, paras. 37 -38.  
31 Guatemala's first written submission, paras. 50, 72.  
32 Guatemala's first written submission, para. 40.  
33 1 quintal is equivalent to 100 kg.  
34 A 9.5% recovery rate means that from 100 kg of sugarcane crushed, 9.5 kg of sugar can be produced.   
35 Guatema la's first written submission, paras. 51 –72. The production of sugarcane in sugar season 
2017/18 in Bihar, Haryana, Punjab, Tamil Nadu, Uttarakhand, and Uttar Pradesh was 218.815 million MT of 
sugarcane. India's total production of sugarcane in sugar seaso n 2017/18 was 355.098 million MT. See Annex 
Table 1.1 of CACP, Price Policy for Sugarcane (2019 -20 sugar season), August 2018, Exhibit JE -53, pp. 53 -54.  
36 Tamil Nadu applies the SAP based on recovery rates in a manner similar to the FRP. For example, the 
SAP in Tamil Nadu for the sugar season 2016 -2017 was "Rs.275 per quintal linked to 9.5% with increase of 
Rs.2.42 for every 0.1% -point increase in recovery above 9.5 per cent ". See CACP, Price Policy for Sugarcane 
(2018 -19 sugar season), August 2017, Exhibi t JE-52, p. 57.  
37 Guatemala's first written submission, paras. 53 -54.  
38 Guatemala's second written submission, para. 4.  
39 Guatemala's first written submission, paras. 72 -99. 
40 CACP, Price Policy for Sugarcane (2018 -19 sugar season), August 2017, Exhibit J E-52, Annex Table 
2.2, column 2014 -15, row Andhra Pradesh.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
- 63 - 
 
  Sharing Formula ("RSF")41. These payments are "over and above the Fair and Remunerative Price"42. 
C. India's FRP and SAP provide MPS in excess of the 10% de minimis  limit 
21. In accordance with paragraph 8 of Annex 3, MPS is measured by calculating the gap between 
the Fixed External Reference Price ("FERP") and the Applied Administered Price ("AAP"), which is 
then multiplied by the quantity of eligible production ("QEP").43 This formula, known as the "price 
gap" formula or met hodology, can be illustrated as follows:  
 
 
 
22. The price gap formula with the three elements just discussed is used to state the level of MPS 
in absolute terms. The resulting MPS in absolute terms must be added to other forms of domestic 
support, where applicable, so that the total amount of domestic support can be divided by the total 
value of production to state the level of domestic support as a percentage of the total value of 
production.  
Domestic support in 
relation to total value 
of production  = Domestic support 
in absolute terms  ÷ Total 
national 
production  * Producer 
price 
                                   total value of production       
                                    fourth element  
23. For the calculation of MPS, Guatemala determined the values of the AAP, the FERP, the QEP 
and the total value of production based on India's official data and documents.44  
24. With respect to the AAP, Guatemala relied on the FRP and the SAP. For the States that did not 
apply SAPs, Guatemala calculated the AAP on the basis of the FRP (base level FRP plus any possible 
premium that result ed when the recovery rate in a State exceeded the recovery rate for the base 
level).45 For the six States that did apply SAPs, Guatemala calculated the AAP on the basis of the 
SAP for the mid -point variety, with the exception of Tamil Nadu, which operates an SAP on the basis 
of a base rate and premiums in accordance with recovery rates (similar to the FRP).46 
 
41 The use of SAPs has been criticised by Indian experts and federal specialised agencies. For example, 
Dr. Rangarajan's Report (Exhibit GTM -31, para. 5, pp. 7 -8) and the CACP reports (see e.g. CAC P, Price Policy 
for Sugarcane 2019 -20 sugar season, August 2018, Exhibit JE -53, p. 4) have advised Indian States to eliminate 
the SAP and replace it with a RSF. The RSF is a way of determining the remuneration payable to sugarcane 
producer s based not on a price fixed for sugarcane, but rather on a distribution between sugarcane producers 
and sugar mills of the revenue generated by sugar mills from sales of sugar and/or other products made from 
sugarcane.  
42 Paragraph (g)(ii) of Statement of Objects and Reasons, paragraph (i)(a) of Amendment of section 2, 
paragraph (f) of Amendment of section 4 of the Karnataka Act No. 28 of 2014, Exhibit GTM -28. 
43 The AAP is "the price set by the government at which specified entities will purchase certain ba sic 
agricultural products " (see Panel Report, China – Agricultural Producers , para. 7.177). The quantity of 
production eligible refers to "the amount of production of a product which is fit, or able to benefit from the price 
support provided through the AA P" (see Panel Report, China – Agricultural Producers , para. 7.283). Put 
differently, quantity of production eligible is the amount of production that is eligible  to be purchased at the 
AAP, rather than the amount of production that was actually  purchased a t the AAP (see Appellate Body Report, 
Korea – Various Measures on Beef , para. 120). The FERP is fixed and stated in each Member's Supporting 
Table. Pursuant to paragraph 9 of Annex 3 of the Agreement in Agriculture, it "shall be based on the years 1986 
to 1988 […] " and "may be adjusted for quality differences as necessary ". Nothing in the Agreement on 
Agriculture, however, allows the FERP to be adjusted for other factors.  
44 See Guatemala's updated calculations of India's AMS, Exhibit GTM -45, Revision 12 May  2021. 
45 Guatemala's first written submission, para. 143. See Exhibit GTM -45, Revision 12 May 2021, "MPS for 
sugarcane in absolute terms - 2014/15 to 2018/19 ", Tables 9.1 - 9.5.   
46 Guatemala's first written submission, para. 143. See Exhibit GTM -45, Revis ion 12 May 2021, "MPS for 
sugarcane in absolute terms - 2014/15 to 2018/19 ", Tables 9.1 - 9.5.  Note that, for Tamil Nadu, Guatemala 
calculated the AAP on the basis of the base SAP rate, without premiums, as the average recovery rate of MPS in 
absolute 
terms  =  AAP -  FERP *   QEP 
  first element  
first element   second element  
second element   third element  
third element  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  25. With respect to the FERP, Guatemala relied on the figures provided in India's Supporting 
Table47, i.e. INR 156.16/mt based on a recovery rate of 8 .5%, which, in accordance with paragraph 
9 of Annex 3, were adjusted for quality differences in light of the actual recovery rates, which in 
some States are higher than 8.5%.48  
26. In relation to the QEP, in the absence of any legal limitation on the QEP,  the entire production 
of sugarcane in India was considered as eligible to receive the AAP for purposes of calculating India's 
MPS for sugarcane under paragraph 8 of Annex 3 of the Agreement on Agriculture.49  
27. Finally, with respect to the total value of sugarcane production , Guatemala relied on the figures 
provided in MOSPI's National Account Statistics (Exhibit JE -147). This document can be read in two 
different ways. India has chosen not to explain how its own  official document should be read. In any 
event, on the basis of the evidence before the Panel, in particular, MOSPI's National Account Statistics 
(Exhibit JE -147); and "National Accounts Statistics Sources and Methods 2007" (Exhibit JE -168), a 
document ex plaining the sources of the data and the methods used by MOSPI in preparing the 
statistics submitted in Exhibit JE -147, the Panel can make an objective assessment of the figures 
that should be used for the calculation of India's total value of production.  
28. As explained in Guatemala's response to Panel's question 60, there are two options for 
calculating the total value of sugarcane production. MOSPI's National Account Statistics contains 
entry 4, titled "Sugars", which in turn is subdivided into three s ub-entries, "4.1 Sugarcane", "4.2 
gur", and "4.3 others". The first option  includes only sub -entry 4.1 of MOSPI's data and is based on 
Guatemala's original reading of MOSPI's statistics based on the ordinary meaning of "Sugarcane" in 
sub-entry 4.1. The second option  includes sub -entries 4.1 and 4.2 ("Sugacane" and "gur") and is 
based on the additional clarifications provided by "National Accounts Statistics Sources and Methods 
2007" (Exhibit JE -168). This document clarified that the actual sales of sugarcan e include both 
"Sugarcane" and "gur" sales.50 Guatemala considers that either option is valid for the calculation of 
India's total value of sugarcane production. However, on the basis of the clarifications provided by 
Exhibit JE -168, Guatemala has a prefer ence for Option 2 (calculating the total value of sugarcane 
production on the basis of "Sugarcane" and "gur"). Moreover, Option 2 also happens to be more 
favourable to India. As can be seen in Guatemala's revised calculations in Exhibit GTM -45 (Revision 
12 May 2021), Option 2 results in lower AMS margins. In any event, Guatemala would nonetheless 
not object if the Panel were to rely only on heading 4.1 ("Sugarcane"), as originally envisaged in 
Option 1. Guatemala, therefore, has included both options in its  revised calculations in Exhibit GTM -
45 (Revision 12 May 2021).  
29. In accordance with Guatemala's calculations, India's MPS provided through the FRP and the 
SAP, results in AMS levels ranging from 86% to 94%51 (Option 2), or alternatively, from 105% to 
118%52 (Option 1), depending on the figures used for the calculation of total value of sugarcane 
production53. Under either option, India acts inconsistently with its obligations under Article 7.2(b) 
of the Agreement on Agriculture.  
D. India's other domest ic support measures further exacerbate India's breach of its 
obligation not to exceed the 10% de minimis  limit 
30. In principle, pursuant to Article 7.2(a) of the Agreement on Agriculture, every domestic support 
measure should be included in the calculatio n of a Member's Current Total AMS, except for, inter 
alia, measures that are exempted from reduction "by reason of any other provisions of this 
Agreement", including Annex 2, Articles 6.2 and 6.5, and paragraph 8 of Annex 3. The second 
 
sugarcane in Tamil Nadu was below 9.5% in each of the relevant sugar seasons. Note also that, Guatemala did 
not provide calculations of the AAP on the basis of the FRP  for States providing SAPs because, in Guatemala's 
view, these calculations do not accurately reflect the ap plicable AAPs in the States providing SAPs. In any 
event, if the Panel were to consider that it is not necessary to take into account the SAPs in the calculation of 
India's AMS, Guatemala incorporates by reference Australia and Brazil's calculations of Ind ia's AMS on the basis 
of the FRP alone, without SAPs . See revised versions of AUS -1 and BRA -1. 
47 India's Supporting Table, G/AG/AGST/IND, p. 29.  
48 See Guatemala's updated calculations of India's AMS, Exhibit GTM -45, Revision 12 May 2021 . 
49 See Guatemala's first written submission, paras. 148 -153.  
50 See Guatemala's answer to Panel's question 60.  
51 See Exhibit JE –174. 
52 Guatemala's updated calculations of India's AMS, Exhibit GTM -45, Revision 12 May 2021 .  
53 See Guatemala's answer to Panel' s question 60, and Guatemala's comments on India's an swer to 
Panel's question 60.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  sentence of paragrap h 8 of Annex 3 of the Agreement on Agriculture states that "[b]udgetary 
payments made to maintain th[e] gap [between the AAP and the FERP] such as buying -in or storage 
costs shall not be included in the AMS". Thus, when incorporating into the AMS calculati on the 
domestic support resulting from a MPS system (calculated based on the difference between the AAP 
and FERP), one must exclude budgetary payments made to "maintain th[e] gap [between the AAP 
and the FERP]", which, in principle, would have qualified as  domestic support measures that should 
have been added to AMS.  
31. In its first written submission, Guatemala identified multiple budgetary payments made by 
India to assist sugar mills in paying sugarcane producers the AAP for the sugarcane purchased. Thes e 
budgetary payments were either expressly described in Guatemala's first written submission,54 or 
incorporated by reference in Guatemala's first written submission.55  
32. Guatemala considers that – with the exception of two state -level measures (Andhra P radesh's 
purchase tax exemption and Tamil Nadu's incentive payments) included by Guatemala in the 
calculation of India's AMS56 – these budgetary payments qualify as budgetary payments made to 
maintain the gap within the meaning of paragraph 8 of Annex 3 of the Agreement on Agriculture.57 
Therefore, unless India states or the Panel finds otherwise, Guatemala submits that these bud getary 
payments should not be included in India's AMS calculation.  
33. With respect to the two state -level measures that, in principle, should be included in the AMS 
calculation because they are not applied to maintain the gap between the FERP and India's  AAP58, 
Guatemala understands that the amount of domestic support resulting from them is marginal in 
comparison to the domestic support provided through India's MPS. Hence, should the Panel consider 
that, in order to resolve the dispute, it would be suffic ient to include in India's AMS calculation only 
the domestic support resulting from India's MPS, Guatemala would not object to excluding these two 
 
54 Bihar's direct payments (Guatemala's first written submission, para. 87); Central Government Soft 
Loans Scheme for sugar seasons 2014 -15 and 2018 -19 (Guatemala's first wri tten submission, para. 89 -92); 
Andhra Pradesh's soft loans (Guatemala's first written submission, para. 93); Bihar's soft loans (Guatemala's 
first written submission, para. 94 -95); Uttar Pradesh's loans for payment of sugarcane arrears for sugar season 
2018-19 (Guatemala's first written submission, para. 96); Karnataka's transitional payments (Guatemala's first 
written submission, paras. 170 -175); Tamil Nadu's transitional payments (Guatemala's first written submission, 
paras. 176 -179); and Andhra Pradesh's  purchase tax exemption (Guatemala's first written submission, paras. 
180-184).  
55 Bihar's purchase tax exemption (Australia's first written submission, Annex E -02, para. 508); Gujarat 
soft loan Scheme 1 (Australia's first written submission, Annex E -03, pa ra. 510); Gujarat soft loan Scheme 4 
(Australia's first written submission, Annex E -03, para. 511); Haryana's financial assistance to clear sugarcane 
arrears of sugar year 2018 (Australia's first written submission, Annex E -04); Haryana's soft loans or loa n relief 
to clear cane dues of sugar year 2018 (Australia's first written submission, Annex E -04); Maharashtra's 
purchase tax exemption (Australia's first written submission, Annex E -06); Punjab assistance to sugar mills to 
pay sugarcane arrears for sugar season 2017 -18 (Australia's first written submission, Annex E -07); Punjab's 
payment of SAP for sugar season 2018 -19 (Australia's first written submission, Annex E -07); Tamil Nadu's 
loans to cooperative sugar mills (Australia's first written submission, Ann ex E-08, para. 517); Telangana's 
purchase tax exemption (Australia's first written submission, Annex E -09); Uttar Pradesh's purchase tax 
exemption (Australia's first written submission, Annex E -10, para. 520); Uttar Pradesh's guarantee and 
guarantee fee wa iver (Australia's first written submission, Annex E -10, para. 521); Uttar Pradesh's loans for 
payment of sugarcane arrears for sugar season 2016 -17 (Australia's first written submission, Annex E -10, para. 
522); Uttar Pradesh's loans for payment of sugarcan e arrears issued in 2018 (Australia's first written 
submission, Annex E -10, para. 523); and Uttar Pradesh's payments of INR 450 per MT against purchase of 
sugarcane by mills for sugar season 2017 -18 (Australia's first written submission, Annex E -10, para. 524).  
56 Originally, Guatemala included three state -level measures in the calculation of India's AMS. Based on 
the available evidence, i.e. Karnataka's Budget Estimates for the financial year 2020 -21 (Exhibit JE -173), as 
well as India's response to Guatemal a's question 3, Guatemala decided to withdraw from India's domestic 
support calculations  the amounts budgeted under the "Payment of Incentive Price for Sugar Cane through 
Sugar Factories " scheme , see Exhibit GTM -45 (Revision 12 May 2021) . Guatemala notes t hat the withdrawal of 
these amounts (0.1 INR million) from the calculation of India's domestic support has negligible effects in terms 
of India's AMS levels. Indeed, after withdrawing these amounts from Guatemala's calculations, the AMS levels 
calculated b y Guatemala continue to be aligned with the AMS levels calculated by the other complainants that 
did not withdraw n the amounts budgeted under this scheme.  
57 As noted in Guatemala's answer to Panel's question 21, it is understood that these budgetary 
payme nts could become relevant to India's AMS calculations in a future scenario, for example as part of India's 
implementing actions in this dispute if India were to eliminate its system of AAP but keep this type of budgetary 
payments. If that were to occur, th ese budgetary payments would no longer be maintaining a gap created by 
an AAP and thus, like any other domestic support measures, they would have to be included in the AMS. In that 
case, India would need to ensure that all forms of domestic support, regard less of whether they are MPS or 
other policies, are kept within de minimis  levels.  
58 Guatemala's first written submission, paras. 169 -190.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  state-level measures from the calculation of India's AMS.  
34. In this respect, a finding of WTO -inconsistency  based on India's MPS alone would not mean 
that, in order to bring its AMS within de minimis  levels, India would need to reduce only its MPS 
measures. Rather, to comply with the Panel's findings, India would have to ensure that the sum of 
all types of dome stic support – MPS, non -exempt direct payments, or any other non -exempt policies 
– does not exceed its de minimis  levels under the Agreement on Agriculture.  
E. India's has failed to rebut the complainants' prima facie  case of violation under 
Article  7.2(b ) of the Agreement on Agriculture  
35. India does not dispute that it legally mandates sugar mills to purchase sugarcane at the 
administered prices. Similarly, India takes no issue with the data used by Guatemala in the domestic 
support calculations or with  the results of these calculations.59 India's defence in this proceeding has 
focused on disputing the legal characterization of the FRP and the SAP as MPS.  
36. With respect to the domestic support measures other than MPS, India agrees that the domestic 
support provided through non -exempt direct payments and other non -exempt measures may be 
calculated using budgetary outlays.60  However, India argues that, because the FRP and the SAPs 
should not be counted as domestic support, the remaining state -level measu res would be the only 
domestic support to be accounted for, but that they do not alone exceed the 10% de minimis  rule.61  
37. India's arguments are based on an incorrect reading of Annex 3 of the Agreement on 
Agriculture. As demonstrated by Guatemala, the FRP and the SAPs do provide domestic support.62 
Together, the FRP, the SAPs and the two state -level measures provide an overall amount of domestic 
support that exceeds the 10% de minimis  rule.63 
38. In the following subsections, Guatemala will rebut the arguments put forward by India.  
1. Domestic support need not consist of budgetary outlays and 
revenue foregone by government or their agents  
39. India alleges that domestic support can exist only if the support consists of budgetary outlays 
or revenue foregone, but not when the government sets an AAP to be paid by private entities. India 
contends that its argument is grounded in paragraph 2 of Annex 3 read together with paragraph 1 
of Annex 3 of the Agreement on Agriculture.  
40. Paragraphs 1 and 2 of Annex 3 of the Agreement on Agriculture  provide:  
1. Subject to the provisions of Article 6, an Aggregate Measurement 
of Support (AMS) shall be calculated on a product -specific basis for 
each basic agricultural product receiving market price support, non -
exempt direct payments, or any other subs idy not exempted from the 
reduction commitment ("other non -exempt policies"). Support which 
is non -product specific shall be totalled into one non -product -specific 
AMS in total monetary terms.  
2. Subsidies under paragraph 1  shall include both  budgetary ou tlays 
and revenue foregone by governments or their agents. (emphasis 
added).  
41. According to India, paragraph 2 of Annex 3 establishes that MPS, as a form of domestic 
support, can be provided only when "governments or their agents" purchase the agricultur al product 
at the AAP. India also argues that the term "both", which follows the term "include", limits "the 
universe of actions from/by the government or their agents to budgetary outlays and revenue 
 
59 See also Guatemala's closing statement at the first substantive meeting, para. 2.10.  
60 India's response to Panel question 49.  
61 India's first written submission, para. 82; India's opening statement at the first substantive meeting, 
para. 11.  
62 Guatemal a's opening statement at the first substantive meeting, paras. 3.7 -3.14; Guatemala's closing 
statement at the first substantive meeting, paras. 2.5 -2.9.  
63 Guatemala's updated calculations of India's AMS, Exhibit GTM -45 (Revision 12 May 2021) . WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  foregone".64  
42. India's interpretation is legally inc orrect and is at odds with other provisions of the Agreement 
on Agriculture. India incorrectly reads the clause "shall include" as "shall only include". In essence, 
India's argument requires incorporating words into paragraph 2 of Annex 3 that simply are n ot there. 
India effectively reads the terms "shall include" as "shall only include". This interpretative approach 
is not permissible under article 3.2 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Article 31 of the Vienna Convention on the Law of Treaties 
("Vienna Convention") and, therefore, should be rejected by the Panel.65 
43. As noted in Guatemala's opening statement at the first substantive meeting,66 the ordinary 
meaning of the term "include" is "[c]ont ain as part of a whole"67, "that what follows is not an 
exhaustive, but a partial, list of all covered items"68. The term "include" is used to indicate that the 
examples that follow are "illustrative, not exhaustive"69, "illustrative and expansive"70, and that there 
may be other issues to be considered among those mentioned.71 Hence, the stipulation in 
paragraph  2 of Annex 3 that subsidies "shall include" budgetary outlays and revenue foregone by 
governments or their agents" merely illustrates the types of measures that can constitute domestic 
support. It does not have the meaning ascribed by India of limiting MPS to those measures that 
involve budgetary outlays or revenue foregone by governments.  
44. Furthermore, India presents an equally invalid argument w hen asserting that the term "both" 
after the term "include" in paragraph 2 of Annex 3 indicates that domestic support is limited to 
budgetary outlays and revenue foregone. The term "both" does not have the limiting effect that India 
is attaching to it. The  term "both" is used when referring to "two things, people, or groups previously 
specified", that is, to emphasise that "the one as well as the other" is covered under a relevant 
category.72 Thus, the clause "shall include both" simply means that two examp les are being provided. 
It does not mean that the two elements stated thereafter are the only possible means of providing 
domestic support. Canada73, the European Union74, Japan75 and the United States76 also agree that 
domestic support is not limited to budgetary outlays and revenue foregone.  
45. Moreover, Article 6.1 and paragraphs 1 and 8 of Annex 3 of the Agreement on Agriculture 
confirm that domestic support measures are not limited to budgetary out lays and revenue foregone. 
Article 6.1, titled "Domestic Support Commitments", states that the "domestic support reduction 
commitments of each Member […] shall apply to all [] domestic support measures  in favour of 
agricultural producers" (emphasis added),  which means that the scope of application of domestic 
support commitments is broad and in no manner limited to the subset of measures argued by India. 
Moreover, nothing in paragraph 1 of Annex 3, which sets out the three different types of domestic 
suppor t, limits domestic support measures to budgetary outlays and revenue foregone.  
46. Nowhere in paragraph 8 of Annex 3 is there any indication that MPS is limited to budgetary 
outlays and revenue foregone by governments or their agents as alleged by India. In fact, MPS exists 
when there is an AAP; a production eligible to receive that AAP; and there is a FERP that is lower 
than the AAP. Guatemala agrees with the panel in Korea – Various Measures on Beef  that "[m]arket 
price support as defined in Annex 3 can exist even where there are no budgetary payments".77 As 
explained by that panel, this is because "[m]arket price support gauges the effect of a government 
policy measure on agricultural producers of a basic product rather than the budgetary cost of that 
 
64 India's cl osing statement at the first substantive meeting, para. 27 -28.  
65 Guatemala's opening statement at the first substantive meeting, paras. 3.7 -3.14; Guatemala's closing 
statement at the first substantive meeting, paras. 2.5 -2.9.  
66 Guatemala's opening statem ent at the first substantive meeting, para. 3.8.  
67 Shorter Oxford Dictionary, 6th Ed., Definition of "include ", p. 1353, Exhibit GTM -46. 
68 Panel Report, China – Publications and Audiovisual Products , para. 7.294.  
69 Appellate Body Report, Chile – Price Band System , paras. 209 -210. 
70 Appellate Body Report, Australia – Apples , paras. 174 -175.  
71 Panel Report, EC – Bed Linen , para. 6.156.  
72 Oxford English Dictionary, OED Online, "both, pron., adv., and adj. ", Exhibit J E-155. 
73 Canada's oral statement at the first substantive meeting, para. 7.  
74 The European Union's oral statement at the first substantive meeting, para. 4.  
75 Japan's oral statement at the first substantive meeting, para. 5.  
76 The United States' third par ty submission, para. 22.  
77 Panel Report, Korea – Various Measures on Beef , para. 827.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  measure borne by government".78  
47. Therefore, India's argument that the term "both" after the term "include" limits domestic 
support to budgetary outlays and revenue foregone by government and their agents should be 
rejected by the Panel.  
48. Moreover, In dia does not explain how its interpretation of paragraphs 2 of Annex 3 can be 
reconciled with other provisions of the Agreement on Agriculture related to domestic support. For 
example, Article 6.2 of the Agreement on Agriculture provides that "government m easures of 
assistance, whether direct or indirect" are subject to domestic support reduction commitments. 
Similarly, paragraph 1(a) of Annex 2 of the Agreement on Agriculture indicates that domestic support 
may consist of "transfers from consumers". India does not explain how it reconciles its view that all 
forms of domestic support must necessarily involve budgetary outlays and revenue foregone with 
the fact that the Agreement on Agriculture recognizes that domestic support can consist of "indirect 
governm ent measures of assistance" and "transfers from consumers".  
2. To resolve the dispute, the Panel need not determine whether the 
three types of domestic support in paragraph 1 of Annex 3 of the 
Agreement on Agriculture are "subsidies"  
49. India's argument that, under paragraph 2 of Annex 3, MPS can exist only if there are budgetary 
outlays or revenue foregone is predicated on the notion that the clause "any other subsidy" in 
paragraph 2 applies to all three types of domestic support listed in paragraph 1 of  Annex 3, including 
MPS. That is, according to India, all three forms of domestic support listed therein constitute 
"subsidies".79   
50. As Guatemala explained,80 an interpretation made pursuant to Article 3.2 of the DSU and 
Article 31 of the Vienna Conven tion supports Guatemala's view that "market price support" is not 
limited to subsidies. Article 31(1) of the Vienna Convention provides that "[a] treaty shall be 
interpreted in good faith in accordance with the ordinary meaning  to be given to the terms of the 
treaty in their context  and in the light of its object and purpose " (emphasis added).  
51. With respect to the ordinary meaning  of the terms, nothing in paragraphs 1 and 8 of Annex  3, 
the relevant provisions to ascertain th e meaning of MPS, limits MPS to subsidies. Paragraph 1 of  
Annex 3 provides that domestic support measures include MPS. Paragraph 8 of Annex 3 identifies 
the constituent elements of MPS and therefore clarifies that MPS exists whenever a Member: (i) sets 
an AAP; (ii) determines the quantity of production eligible to receive that AAP; and (iii) there is an 
FERP which is lower than the AAP. The ordinary meaning of these terms has been clarified by previous 
WTO panels and the Appellate Body.81 
52. These terms a re used in a specific context  – the rules on domestic support provided in the 
Agreement on Agriculture. Article 1(h)(ii) states that the level of domestic support provided during 
any year of the implementation year and thereafter will be calculated " in acc ordance with the 
provisions of this Agreement, including Article  6 […]". The provisions of the Agreement on 
Agriculture, including Articles 6.1, 6.2, 7.1, 7.2(a), paragraph 1 of Annex 2 and paragraph 13 of 
Annex 3 of the Agreement on Agriculture , provide t hat the disciplines on domestic support apply to 
domestic support "measures", which is a much broader category than just "subsidies". If, as India 
suggests, the domestic support provisions and reduction commitments were intended to apply only 
to "subsidies ", the drafters would have specified in Article 6.1 that "domestic support reduction 
commitments of each Member […] shall apply to all  [] domestic support  subsidies in favour of 
agricultural producers." The other references to measures in the provisions me ntioned above would 
also have been stated differently. The drafters did not do so. They expressly used the term 
"measures" rather than "subsidies". Thus, as reflected in these provisions of the Agreement on 
Agriculture, the disciplines on domestic support apply to domestic support "measures" in general, 
not only to "subsidies", as argued by India.  
53. Indeed, India's interpretative approach would make redundant the treaty term "domestic 
 
78 Ibid.  
79 India's closing statement at the first substantive meeting, paras. 24 -25, 28.  
80 Guatemala's opening statement at the first substantive meeting, paras. 3.1 -3.18; Guatemala's second 
written submission, paras. 6 -53.  
81 See footnote 43 above.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  support" in Articles 1(b) and (h), 3.1, 6.1 – 6.5, 7.1 and 7.2(a), 13( a) and 13(b), 18.3 and 18.4, 
paragraph 1 of Annex 2, paragraph 5 of Annex 3 and paragraph 1 of Annex 4 of the Agreement on 
Agriculture. If all three forms of domestic support listed in paragraph 1 of Annex 3 were subsidies, 
there would have been no need fo r the drafters of the Agreement on Agriculture to introduce the 
term "domestic support" in the first place.82 Equating "domestic support" with "subsidies" would 
reduce the terms "domestic support" in the Agreement on Agriculture to redundancy or inutility – an 
interpretative approach that is impermissible under article 3.2 of the DSU and Article 31 of the Vienna 
Convention.83  
54. This is also confirmed by paragraph 13 of Annex 3, which provides that "[o]ther non -exempt 
measures " include "input subsidies  and other measures  such as marketing -cost reduction measures " 
(emphasis added). The fact that "other -non-exempt measures"  includes "input subsidies " makes 
clear that "measures" is a broader term than "subsidies". If the phrase "other non -exempt measures" 
covered only subsidies, this phrase should have read "[o]ther non -exempt subsidies" and would have 
included "input subsidies and other subsidies", not "input subsidies and other measures". Thus, 
domestic support measures may include subsidies but are not limi ted to them.  
55. Moreover, Articles 6.1 and 7.1 of the Agreement on Agriculture, read together with Articles  6.2, 
6.5 and Annex 2 provide that all domestic support measures, unless expressly exempted by the 
agreement , are to be measured and included in a Member's AMS.84 Paragraph 1 of Annex 3 identifies 
three forms of domestic support measures, one of which is market price support. As explained below 
in section V.E.3, paragraph 8 of Annex 3 sets out the constitutive elements and the price -gap formula 
to calculate MPS. No ne of these provisions limits MPS to subsidies.  
56. Guatemala's proposed interpretation is also in line with the object and purpose  of the 
Agreement on Agriculture, which, as noted above, consists of  "correcting and preventing restrictions 
and distortions  in world agricultural markets" .85 If one were to accept India's argument that MPS 
covers only subsidies provided by governments or their agents in the form of budgetary outlays and 
revenue foregone, it would be easy for WTO Members to circumvent their MPS  obligations by 
requiring private entities to pay AAPs.   
57. Therefore, based on the ordinary meaning to be given to the terms of the treaty in their context 
and in the light of the object and purpose of the Agreement on Agriculture, MPS is not limited to  
subsidies. Moreover, the third parties do not consider MPS to be a subsidy in the sense of paragraph 
2 of Annex 3.86 
58. Furthermore, based on the syntax of paragraph 1 of Annex 3, there could be different ways of 
interpreting the phrase "any other subsid y" in paragraph 1, all of which lead to a different conclusion 
than the one reached by India. For example, one possible interpretation is that the phrase "any other 
subsidy" in paragraph 1 indicates that some domestic support measures may take the form of 
"subsidies" but not necessarily all of them.87 One could also take the view that this phrase refers 
only to the third category of domestic support listed in paragraph 1 of Annex 3, i.e. other non -exempt 
policies.88 Moreover, the phrase "any other subsidy" in paragraph 1 of Annex 3 could also be 
interp reted more broadly, as referring to the second and the third category of domestic support listed 
in that provision (i.e., non -exempt direct payments and other non -exempt policies). A 1991 draft 
version of Annex 3 of the Agreement on Agriculture titled "Dom estic Support: The Definition of the 
AMS" (MTN.GNG/AG/W/1/Add.4, pages 1 and 2) suggests that paragraph 2 of Annex 3 was included 
in the Agreement on Agriculture under the understanding that only non -exempt direct payments and 
 
82 See also the European Union's third party submission, para. 43.  
83 Appellate Body Report, US – Gasoline , p. 23, citing, inter alia , Corfu Channel Case (1949) ICJ Reports, 
p. 24; Territorial Dispute Case (Libyan Arab Jamahiriya v. Chad) (1994) ICJ Reports, p. 23.  
84 As noted by Guatemala in its first written submission, the domestic support measures exempted from 
commitments are the "green box " measures described in Annex 2, the "development box " measures described 
in Article 6.2, and the "blue box " measures  described in Article 6.5.  
85 Agreement on Agriculture, third recital of the preamble.  
86 See e.g. Brazil's opening statement at the first substantive meeting, para. 31. See also the European 
Union's third party submission, paras. 42 -60, and the European Uni on's oral statement at the first substantive 
meeting, paras. 5 -7.  
87 Australia's opening statement at the first substantive meeting, paras. 42 -43. 
88 See Brazil's opening statement at the first substantive meeting, para. 31. See also the European 
Union's third party submission, paras. 42 -60, and the European Union's oral statement at the first substantive 
meeting, paras. 5 -7.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  other non -exempt policies wou ld be considered as the "subsidies under paragraph 1" of Annex 3.89  
59. In any event, Guatemala considers that the Panel need not determine whether the three types 
of domestic support in paragraph 1 of Annex 3 of the Agreement on Agriculture are "subsidie s" to 
resolve this dispute. Even assuming arguendo  that the three different types of domestic support are 
"subsidies", as explained above, they are not limited to revenue foregone and budgetary outlays by 
government or their agents, as argued by India. Thi s is because, the expression "shall include both" 
in paragraph 2 of Annex 3 does not have the limiting effect that India erroneously attributes to it. 
This means that MPS, one of the categories of domestic support listed in paragraph  1 of Annex 3, 
can exis t when the government establishes an AAP to be paid by private operators. This is exactly 
what happens in this case: India is providing MPS by fixing an AAP – i.e. the FRP and the SAPs - and 
legally requiring certain entities – i.e. sugar mills – to pay it .   
3. India erroneously asserts that paragraph 8 of Annex 3 is relevant 
only for calculating MPS, but not for determining whether a 
measure qualifies as MPS  
60. India argues that the existence  of MPS and the calculation  of MPS are two distinct matters.90 
For India, the legal characterization of a measure as MPS is addressed in paragraphs 1 and 2 of 
Annex 3, whereas the calculation of MPS is addressed in paragraph 8 of Annex 3.91  
61. India attempts to introduce an artificial distinction between the concep ts of existence of MPS 
and calculation  of MPS. India's claim that paragraph 8 of Annex 3 does not define MPS is undermined 
by paragraph 1 of Annex 4 ("Domestic Support: Equivalent Measurement of Support"), which 
provides that MPS is defined in Annex 3. The  definition of MPS is found in paragraph 8 of Annex 3 as 
follows:  
Market price support: market price support shall be calculated using 
the gap between a fixed external reference price and the applied 
administered price multiplied by the quantity of product ion eligible to 
receive the applied administered price.    
62. By stipulating the manner in which MPS must be calculated, paragraph 8 of Annex 3 identifies 
the constituent elements of MPS and, thus, defines the measures that constitute MPS. Accordingly, 
MPS exists whenever a Member: (i) sets an AAP; (ii) determines the quantity of production eligible 
to receive that AAP; and (iii) there is a FERP which is lower than the AAP.  
63. It is not unusual in the Agreement on Agriculture to find definitions based on  the result of 
applying certain calculations. For example, Article 1(a) of the Agreement on Agriculture defines AMS 
as the "annual level of support, expressed in monetary terms", which means that AMS is a dynamic 
concept that may change from year to year, and which is expressed in monetary terms. This may be 
explained by the fact that the obligations imposed by the Agreement on Agriculture on domestic 
support are based on reduction commitments for which calculations are relevant.  
64. Thus, India's argument  that the legal characterization of a measure as MPS is addressed in 
paragraphs 1 and 2 of Annex 3, while the calculation of MPS is addressed in paragraph 8 of  
Annex 3, stems from an incorrect reading of Annex 3. It should, therefore, be rejected by the P anel. 
As established by Guatemala, by stipulating the manner in which MPS must be calculated, 
paragraph  8 of Annex 3 identifies the constituent elements of MPS and, thus, defines the measures 
that constitute MPS.   
4. India's constituent data and methodolo gy confirm that the FRP and 
the SAP provide MPS  
65. India argues that the constituent data and methodology ("CDM") of India's Schedule is not 
relevant for the determination of whether the FRP and the SAPs are MPS.92 Guatemala disagrees. 
 
89 See Guatemala's second written submission, paras. 37 -38.  
90 India's closing statement at the first substantive meeting, paras. 14, 30. India's response to Panel's 
question 48.  
91 India's closing statement at the first substantive meeting, para. 14.  
92 India's closing statement at  the first substantive meeting, para. 37. India's response to Panel's 
question 48(d).  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  CDM includes inform ation that is characteristic of and essential for the understanding and calculation 
of a Member's AMS.93 Indeed, the fact that India took no issue with calculating MPS for sugarcane 
based on an AAP paid by producers during 1986 -1988 is significant as it co nfirms that India itself 
considers that the FRP and the SAPs provide MPS within the meaning of the Agreement on 
Agriculture.94  
66. India further argues that "[i]f a Member's Schedule is relied upon to interpret the meaning of 
market price support (despite  the clear provisions of paragraph [sic] 2 and 1 of Annex 3), this will 
lead to a situation where there will be multiple meanings of the same terminology under the AoA 
depending upon the Schedule of a Member"95.  
67. Guatemala considers that a Member's CDM  provides relevant context to confirm that a 
measure provides AMS. Considering this information as context would not result in "multiple 
meanings of the same terminology under the AoA depending upon the Schedule of a Member".  
68. If Annex 3 defines a spec ific term, the CDM of a Member can further elaborate on this definition 
to confirm that meaning but logically it cannot depart from Annex 3. As noted by the Appellate Body 
in EC – Export Subsidies on Sugar96, Members are not authorised to include CDM in th eir Schedule 
that depart from the definitions of Annex 3. This is supported by the general rule under Article 21 of 
the Agreement on Agriculture, which states that this Agreement prevails over provisions of the 
GATT  1994. Thus, given that a Member's CDM is  part of the GATT 1994,97 in the event of a conflict 
between that Members' CDM and the Agreement on Agriculture, the latter would prevail. Therefore, 
as part of the GATT 1994, CDM cannot be used to deviate from the text of Annex  3 of the Agreement 
on Agriculture, and thus, there cannot exist "multiple meanings of the same terminology under the 
AoA depending upon the Schedule of a Member", as argued by India, and thus, India's argument 
should be rejected by the Panel.  
VI. INDIA'S EXPORT SUBSIDIES FOR SUGAR ARE INCONSISTENT WITH ARTICLES 3.3, 
8, 9.1(A) AND (C) OF THE AGREEMENT ON AGRICULTURE, AND ARTICLE 3.1(A) OF 
THE SCM  AGREEMENT  
A. Introduction  
69. India has adopted measures to incentivise its sugar exports as a way to remove the excess  
supply of sugar from its domestic market. India's excessive domestic support for sugarcane 
producers generated a surplus of sugarcane and, consequently, also a surplus of sugar. This has led 
to yet another problem – a drop in domestic sugar prices. As rec ognized by Indian authorities, the 
"excess supply over demand for sugar has created a downward pressure on prices of sugar in the 
country".98 To alleviate all these problems, India adopted programmes to provide sugar mills with 
subsidies conditioned on the ir compliance with export requirements, the ultimate goal being to allow 
domestic sugar prices to increase and, thus, to provide liquidity to sugar mills so they can pay 
sugarcane farmers the high administered prices.  
70. India's export subsidies for sugar  operate by virtue of various legal instruments and schemes. 
In 2015, India introduced the "Minimum Indicative Export Quotas" scheme (or MIEQ), which requires 
the Indian Government to allocate export quotas to each sugar mill in India.  The Indian Governme nt 
requires that sugar mills comply with their MIEQs as a condition to receive subsidies under other 
schemes, namely the Scheme for Assistance to Sugar Mills, the Buffer Stock Scheme 2018, and the 
Buffer Stock Scheme 2019, all of which envisage the provisi on of specified amounts of money to 
sugar mills. By making these subsidies conditional on compliance with export quotas, India maintains 
subsidies contingent on export performance.  
 
93 Panel Report, China – Agricultural Producers , para. 7.144.  
94 G/AG/AGST/IND, pp. 3 and 28.  
95 India's response to Panel's question 48(e).  
96 Appellate Body Report, EC – Export Subsidies on Sugar , paras. 220 -222.  
97 Pursuant to Article 1(a)(ii) of the Agreement on Agriculture, the CDM of a Member as found in the 
supporting table of that Member were  "incorporated by reference in Part IV of the Member's Schedule ". In 
accordance with Article II:7 of the GATT, "Schedules […] are […] an integral part of Part I of [the GATT 1994] ". 
According to Article 3.1 of the Agreement on Agriculture, "the domestic su pport and export subsidy 
commitments in Part IV of each Member's Schedule … are hereby made an integral part of GATT 1994 ". 
98 Commission for Agricultural Costs and Prices ( "CACP "), Price Policy for Sugarcane (2019 -20 sugar 
season), August 2018, Exhibit JE -53, p. 2, para. 1.5.   WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  71. In 2019, India continued promoting sugar exports by introducing yet an other scheme – the 
"Maximum Admissible Export Quantity" scheme (or MAEQ). Similar to the other export subsidies just 
described, the MAEQ operates on the basis of export quotas fixed by the Government for each sugar 
mill in India. If sugar mills comply with  these export quotas, they receive a subsidy in the form of a 
lump sum of INR 10'448 per metric tonne of sugar exported. The MAEQ Scheme is therefore another 
programme maintained by India that is contingent on export performance.  
B. Operation of India's ex port subsidies for sugar  
72. India provides, through the following schemes, subsidies to sugar mills on the condition that 
they export certain quantities of sugar each year:  
(i) Subsidies provided to sugar mills under the Scheme for Assistance to Sugar mills, which 
operates in conjunction with export performance requirements under the Minimum 
Indicative Export Quotas ("MIEQ");  
(ii) Subsidies provided to sugar mills under the Scheme for creation and maintenance of 
buffer stock ("Buffer Stock Scheme 2018"), which oper ates in conjunction with export 
performance requirements under the MIEQs;  
(iii) Subsidies provided to sugar mills under the Scheme for creation and maintenance of 
buffer stock ("Buffer Stock Scheme 2019"), which operates in conjunction with export 
performance re quirements under the MIEQs; and  
(iv) Subsidies provided to sugar mills under the Maximum Admissible Export Quantity 
scheme ("MAEQ Scheme 2019").  
73. These measures constitute export subsidies within the meaning of Articles 9.1(a) and 9.1(c) 
of the Agriculture Agreement. Given that India has no export subsidy reduction commitments in its 
Schedule of Concessions, and consequently no export subsidy entitlements, these export subsidies 
are inconsistent with India's obligations under Articles 3.3, 8, and 9.1 of the Agreement on 
Agriculture. Further, India's export subsidies also constitute export subsidies that are prohibited by 
Article 3.1(a) of the SCM Agreement.  
1. Minimum Indicative Export Quotas (MIEQs)  
74. Since 2015, India has adopted measures requiring sugar  mills to export specific amounts of 
sugar each year. These requirements have taken the form of minimum indicative export quotas 
(MIEQs). India first adopted MIEQs for sugar season 2015/201699 and has continued doing so for 
subsequent seasons.100 Under this  scheme, the Indian Government first determines a global amount 
of sugar that must be exported by all of the sugar mills in the country in a given sugar season. For 
example, for season 2018/2019, this global amount was 5 million metric tonnes.101 Thereafter, the 
Government converts that global export amount into individual allocations of export quotas for each 
sugar mill in India. These are the so -called "mill -wise allocations", which the Indian Government 
announces by releasing a list of hundreds  of sugar mills in India along with the exact quantity of 
metric tonnes of sugar that each sugar mill must export in that sugar season.102 
 
99 DFPD Order of 18 September 2015, "Allocation of sugar factory -wise Minimum Indicative Export 
Quotas (MIEQ) under tradable export scrip schemes " (hereinafter: MIEQ Order for 2015/2016), Exhibit JE -109. 
This measure was withdrawn thr ough Notice of 8 June 2016 of the Department of Food and Public Distribution 
on the subject "Withdrawal of order dated 18.09.2015 regarding allocation of Minimum Indicative Export Quota 
(MIEQ) under tradable export scrip scheme: -regarding ", Exhibit GTM -32. 
100 Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food 
and Public Distribution, Revised allocation of sugar factory -wise Minimum Indicative Export Quotas (MIEQ) 
under tradable export scrip scheme – Regarding,  9 May 2018 (hereinafter: MIEQ Order for 2017/2018), Exhibit 
GTM-33; and  DFPD Order of 28 September 2018, "Allocation of sugar factory -wise Minimum Indicative Export 
Quotas (MIEQ) of sugar for export in sugar season 2018 -19 under tradable export scrip sch emes " (hereinafter: 
MIEQ Order for 2018/2019), Exhibit JE -108. 
101 MIEQ Order for 2018/2019, Exhibit JE -108, paragraph 2.  
102 See, for example, DFPD Order of 28 September 2018, "Allocation of sugar factory -wise Minimum 
Indicative Export Quotas (MIEQ) of sugar for export in sugar season 2018 -2019 under tradable export scrip 
schemes ", Exhibit JE -108. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  75. The MIEQ Orders for each sugar season are adopted by the DFPD, a governmental agency that 
is part of the Ministry of Consumer Affairs, Food and Public Distribution.  
76. The MIEQ Orders were issued pursuant to Clause 5 of the Sugar (Control) Order 1966, which 
gives the Central Government the power "by general or special order " to issue "directions" regarding 
the "maintenance of stocks, storage, sale, grading, marking, weighment, delivery and distribution" 
of sugar.103 The various MIEQ instruments therefore qualify as "orders" under domestic Indian law.104 
2. Scheme for Assistance to Sugar Mills  
77. The Scheme for  Assistance to Sugar Mills was first introduced by the DFPD on 2 December 
2015 "with a view to offset the cost of cane and facilitate timely payment of cane price dues of 
farmers"105, and given that "cane price arrears of farmers reached to an alarming leve l".106 In 2015, 
this programme was originally labelled as the "Scheme for extending production subsidy to sugar 
mills", but was later re -named for seasons 2017/2018 and 2018/2019 to its current name of "Scheme 
for Assistance to Sugar Mills".  
78. Under the S cheme for Assistance to Sugar Mills, the Indian Government provides sugar mills 
with direct payments that, by law, can be used for the sole purpose of paying cane arrears owed to 
sugarcane growers.  
79. Pursuant to the Scheme for Assistance to Sugar Mills,  the Indian Government establishes a 
fixed monetary amount provided to sugar mills per quintal of sugarcane crushed.107 For season 
2015/2016 the amount of the subsidy was INR 4.5/quintal108; for season 2017/2018, it increased to 
INR 5.50/quintal, and for sea son 2018/2019109, it increased further to INR 13.88/quintal.110  
80. The DFPD Notification establishing the subsidy for 2015/2016 requires compliance with an 
export performance requirement as follows:  
Those mills which have achieved at least 80% of the targe ts as per 
terms and conditions under the Minimum Indicative Export Quota 
(MIEQ) scheme notified on 18.09.2015 and in case of mills having 
distillation capacities to produce ethanol have achieved 80% of the 
targets notified on 16.09.2015 by the Department u nder the EBP shall 
be eligible for the above production subsidy.111 
81. According to this provision, in order to receive the subsidy for season 2015/2016, sugar mills 
were required to comply with the export requirements adopted by the DFPD in the form of mi nimum 
indicative export quotas or MIEQs.  
3. Buffer Stock Scheme 2018  
 
103 Clause 5 of the Sugar (Control) Order 1966, Exhibit JE -44. 
104 India confirmed this understanding in its response to Panel's Question 31 (answered as Question 30).  
105 Notification No. 20(43)/2015 -S.P.-I of the Ministry of Consumer Affairs, Food & Public Distribution, 
Department of Food & Public Distribution of 2 December 2015  (hereinafter: Notification establishing the 
Scheme for extending production su bsidy to sugar mills for 2015/2016), Exhibit JE -76, para. 2(i). This measure 
was withdrawn on 19 May 2016 through Notification No. 20(43)/2015 -S.P.-I of 19 May 2016 of the Department 
of Food and Public Distribution, Exhibit GTM -34. 
106 Press Information Bure au, Government of India, Ministry of Consumer Affairs, Food & Public 
Distribution; Central Government issues orders for extending assistance to clear the dues of sugarcane farmers, 
9 May 2018, Exhibit GTM -35. 
107 To recall, 1 quintal equals 100 kilograms.  
108 Notification establishing the Scheme for extending production subsidy to sugar mills for 2015/2016, 
Exhibit JE -76, para. 2(i).  
109 Notification No. 1(5)/2018 -S.P.-I of the Ministry of Consumer Affairs, Food & Public Distribution, 
Department of Food & Publi c Distribution of 9 May 2018  (hereinafter: Notification establishing the Scheme for 
Assistance to Sugar Mills for 2017/2018 ), Exhibit JE -75, para. 3(i).  
110 Notification No. 1(14)/2018 -S.P.-I of the Ministry of Consumer Affairs, Food & Public Distribution, 
Department of Food & Public Distribution of 5 October 2018 (hereinafter: Notification establishing the Scheme 
for Assistance to Sugar Mills for 2018/2019) , Exhibit JE -74, para. 3(i).  
111 Notification establishing the Scheme for extending production subsidy t o sugar mills for 2015/2016, 
Exhibit JE -76, para. 2(iii)  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  82. On 15 June 2018, India introduced the "Scheme for the Creation and Maintenance of Buffer 
Stock", which seeks to reduce the supply of sugar in the domestic market and, consequently, t o 
"stabilize the domestic sugar price" ("Buffer Stock Scheme 2018").112 Through this voluntary scheme, 
India seeks to incentivize sugar mills to store a global quantity of 3 million metric tonnes of sugar. 
This global amount is divided into mill -wise allocations that establish the individual quantities of sugar 
that each suga r mill is expected to store.113  
83. The Buffer Stock Scheme 2018 provides participating sugar mills with subsidies related to the 
carrying costs of maintaining sugar stocks. As this measure also seeks to address the problem of 
cane arrears, sugar mills must use the amount of the subsidy to pay sugarcane growers the arrears 
owed. Participating sugar mills undertake to "set apart the quantity allocated as buffer stock and 
store it in a separate and distinctly identifiable lots and stock within the mi ll premises".114 
84. The Buffer Stock Scheme as established on 15 June 2018 and amended on 31 December 2018, 
requires, as a condition for receiving the buffer stock subsidy, that sugar mills "fully comply with all 
the orders/directives issued by Department of Food & Public Distribution for compliance during 2018 -
19 sugar season".115 As previously established, MIEQ Orders constitute one of the "orders/directives" 
issued by the DFPD during the 2018/2019 sugar season. This order requires sugar mills to export 
specific quantities of sugar during that sugar season as a condition for receiving the buffer stock 
subsidy for season 2018/2019.  
4. Buffer Stock Scheme 2019  
85. On 31 July 2019, India adopted the "Scheme for Creation and Maintenance of Buffer Stock" 
("Buffe r Stock Scheme 2019"),116 which is a continuation of the Buffer Stock Scheme 2018 already 
described. As will be explained below, under the rules of the Buffer Stock Scheme 2019, the amount 
of the eligible buffer stock subsidy is also linked to compliance wi th export requirements under the 
MIEQ Order for season 2018 -2019.  
86. As with the previous buffer stock schemes, the Buffer Stock Scheme 2019 provides a subsidy 
to sugar mills that opt to participate in this scheme by storing specific quantities of sugar a llocated 
by the DFPD. Under the Buffer Stock Scheme 2019, the total quantity of sugar to be stored by all 
sugar mills is 4 million MT.117 This represents an increase from the 3 million MT established under 
the Buffer Stock Scheme 2018.  
87. The Buffer Stock Scheme 2019 contains a rule linking the eligible quantity of subsidized buffer 
stock with compliance by sugar mills with their allocated MIEQs:  
The Central Government shall make mill -wise allocation of buffer 
stock having regard to the stock held by it. In  case a sugar mill has 
failed to export any quantity up to June, 2019 against the MIEQ 
issued vide directive dated 28.09.2018 of DFPD, its stock shall be 
considered after deducting the quantity equivalent to its allocated 
MIEQ. […] 118 
88. This means that f or a sugar mill that, as of June 2019, did not export any of the quantity stated 
in its MIEQ allocation, its eligible buffer stock will be reduced by deducting the entire quantity of its 
MIEQ allocation. As the amount of the buffer stock subsidy depends on  the amount of the eligible 
buffer stock, a smaller buffer stock means a lower subsidy. Hence, to avoid having its buffer stock 
quantity reduced, the sugar mill must export at least some sugar pertaining to its allocated MIEQ for 
season 2018/2019. The coro llary is that export performance under the MIEQ is rewarded by means 
 
112 Notification No. 1(6)/2018 -SP-I of the Ministry of Consumer Affairs, Food & Public Distribution, 
Department of Food & Public Distribution of 15 June 2018 (hereinafter: Notification establishing the  Buffer 
Stock Scheme 2018), Exhibit JE -78. 
113 Notification establishing the Buffer Stock Scheme 2018, Exhibit JE -78, para. 2.  
114 Ibid. 
115 Notification No. 1(6)/2018 -SP-I of the Ministry of Consumer Affairs, Food & Public Distribution, 
Department of Food & Pub lic Distribution of 31 December 2018, Exhibit JE -112, para. 2.  
116 Notification No. 1(8)/2019 -SP-I. of the Ministry of Consumer Affairs, Food & Public Distribution, 
Department of Food & Public Distribution of 31 July 2019 (hereinafter: Notification establish ing the Buffer Stock 
Scheme 2019), Exhibit JE -77. 
117 Notification establishing the Buffer Stock Scheme 2019, Exhibit JE -77, preamble.   
118 Notification establishing the Buffer Stock Scheme 2019, Exhibit JE -77, para. 2.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  of a larger buffer stock subsidy under the Buffer Stock Scheme 2019.  
5. Maximum Admissible Export Quantity (MAEQ)  
89. On 12 September 2019, India introduced a scheme by which sugar mills receive subsidies if 
they comply with sugar export quotas ("MAEQ Scheme 2019").119 Consistent with India's prior 
measures to incentivise exports, the MAEQ Scheme 2019 was introduced "with a view to facilitate 
export of sugar during the sugar season 2019 -20 […] thereby improving the liquidity position of 
sugar mills enabling them to clear cane prices dues of farmers for sugar season 2019 -20".120 
90. Under the MAEQ Scheme 2019, sugar mills receive fixed lump sums that are ostensibly related 
to expenses incurred  in connection with exportation of sugar:121 
 Expense  Amount  
a Marketing, including handling, quality, up -gradation, debagging and re -
bagging, and other processing costs  INR 4'400/MT  
b Internal transport and freight charges, including loading, unloading and 
fobbing  INR 3'428/MT  
c Ocean freight against shipment from Indian ports to the ports of 
destination in foreign countries  INR 2'620/MT  
 Total  INR 10'448/MT  
  
91. The amount of the subsidy received by sugar mills is calculated as a lump sum per metric 
tonne of sugar exported. According to the DFPD Notification establishing the MAEQ Scheme 2019, 
the amount of the subsidy is related to expenses incurred by sugar mills . However, nothing in this 
instrument requires that the amount of the subsidy be limited to the actual marketing or transport 
costs actually incurred by sugar mills. The amount of the subsidy is thus calculated simply by 
multiplying the prescribed lump sum  by the metric tonnes of sugar exported by a sugar mill.  
92. Furthermore, the MAEQ Scheme 2019 clarifies that "[t]he funds to be provided as assistance 
to facilitate export is [sic] to be used for payment of cane dues of farmers for the sugar season 2019 -
20 and cane price arrears of previous sugar seasons".122 To this end, as with other schemes of India, 
the subsidy is deposited in bank accounts of sugarcane growers on behalf of sugar mills.123  
C. India's export subsidies for sugar fall under Article 9.1 of  the Agreement on 
Agriculture.  
93. The Scheme for Assistance to Sugar Mills, the Buffer Stock Scheme 2018, and the Buffer Stock 
Scheme 2019, in conjunction with the MIEQ Orders, as well as the MAEQ Scheme 2019, all result in 
the provision of subsidies to sugar mills that are contingent on compliance with export performance 
requirements. These schemes constitute export subsidies for sugar under Articles 9.1(a) and 9.1(c) 
of the Agreement on Agriculture. As India does not have commitments in its Schedule reg arding 
export subsidies for sugar, it is therefore acting inconsistently with its obligations under Articles 3.3, 
8, and 9.1 of the Agreement on Agriculture by providing export subsidies for this product.   
 
119 Notification No. 1(14)/2019 -S.P.-I. of the Ministry of Consumer Affairs, Food & Public Distribution, 
Department of Food & Public Distribution of 12 September 2019 (hereinaft er: MAEQ Notification 2019), Exhibit 
JE-114. 
120 MAEQ Notification 2019, Exhibit JE -114, preamble.  
121 MAEQ Notification 2019, Exhibit JE -114, para. 3. 
122 MAEQ Notification 2019, Exhibit JE -114, paras. 1 and 5(i).  
123 MAEQ Notification 2019, Exhibit JE -114, para.  5(ii). WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1. India's sugar export subsidies constitute dire ct subsidies 
contingent on export performance under Article 9.1(a) of the 
Agreement on Agriculture.  
94. Article 9.1(a) refers to export subsidies in the form of direct subsidies contingent on export 
performance that are provided by governments or their ag encies to a firm, an industry, producers of 
an agricultural product, or an association of such producers. The type of export subsidy defined in 
Article 9.1(a) contains four elements: (i) existence of "direct subsidies, including payments -in-kind"; 
(ii) pro vided by "governments or their agencies"; (iii) "to a firm, an industry, to producers of an 
agricultural product, to a cooperative or other association of such producers, or to a marketing 
board"; and (iv)  which are "contingent on export performance".  
95. With respect to the first element of Article 9.1(a) , the existence of "direct subsidies", the 
complaining party must demonstrate the existence of a "subsidy" as a transfer of economic resources 
from the grantor to the recipient for less than full considera tion, that is "direct", i.e. provided in a 
manner that is straight and immediate.  
96. As noted, in the case of the Scheme for Assistance to Sugar Mills, the subsidy was first set at 
INR 4.5/quintal for season 2015/2016, which then increased to INR 5.50/qui ntal for season 
2017/2018, and increased again to INR 13.88/quintal for season 2018/2019.124 Under the Buffer 
Stock Scheme 2018 and the Buffer Stock Scheme 2019, sugar mills receive monies related to the 
costs of storing the allocated quantities of sugar. S pecifically, the subsidies relate to the costs of 
interest, insurance and storage. Under the MAEQ Scheme 2019, the subsidy consists of a specific 
lump sum per metric tonne of sugar exported.125  
97. Under the second element of Article 9.1(a) , the subsidy must be provided "by governments or 
their agencies". In the present case, the four subsidies in question are provided by the DFPD, India's 
Department of Food and Public Distribution, which is a government agency that belongs to the 
Ministry o f Consumer Affairs, Food and Public Distribution. Moreover, the introductory paragraphs of 
the different instruments establishing these subsidies indicate that these schemes are being notified 
by the "Central Government".  
98. Concerning the third element of Article 9.1(a) , it must be shown that the direct subsidy is 
provided "to a firm, to an industry, to producers of an agricultural product, to a cooperative or other 
association of such producers, or to a marketing board". All four of India's subsidies at  issue are 
provided to sugar mills, i.e. production facilities that transform sugarcane into sugar.  
99. Finally, as to the fourth element of Article 9.1(a) , "contingent on export performance", the 
contingency on export performance is expressed in the foll owing manner:  
• The Scheme for Assistance to Sugar mills establishes, as a condition for receiving the 
production subsidy, that sugar mills comply with the export requirements under the MIEQ 
Orders. The DFPD Notifications establishing the production subsidy for 2017/2018 and 
2018/2019 also require that sugar mills comply with MIEQ Orders as a condition to receive 
the production subsidy. As already established, the export requirements under the MIEQ 
constitute Orders or Directives of the DFPD.126  
• The Buffer St ock Scheme 2018 also operates in conjunction with MIEQ Orders as the subsidy 
is provided only to sugar mills that "fully comply with all the orders /directives issued by the 
Department of Food & Public  Distribution for compliance during 2018 -19 sugar season ".127 
• The Buffer  Stock Scheme 2019 is also linked to MIEQ Orders. As explained, the quantity of 
sugar stock that may be subsidised can be reduced for sugar mills that fail to export any 
quantity of their allocated MIEQ.128  
 
124 See above para. 0. 
125 See above para. 0. 
126 See above para. 0. 
127 Notification No. 1(6)/2018 -SP-I of the Ministry of Consumer Affairs, Food & P ublic Distribution, 
Department of Food & Public Distribution of 31 December 2018, Exhibit JE -112, para. 2. 
128 See above paras. 0-0. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  • With respect  to the MAEQ Scheme 20 19, Guatemala notes that this scheme was introduced 
"with a view to facilitate export of sugar".129 Thus, the subsidy is available only to sugar mills 
that "export at least 50% of [their] MAEQ",130 and is calculated based on lump sums per 
metric tonne of exported sugar.  
100. In summary, India's subsidies under the Scheme for Assistance to Sugar Mills, th e Buffer Stock 
Scheme 2018, the Buffer Stock Scheme 2019, and the MAEQ Scheme 2019 qualify as export 
subsidies within the meaning of Article 9.1(a) of the Agreement on Agriculture because they involve 
"direct subsidies" that are provided by the Indian Gove rnment to sugar mills and are contingent upon 
export performance.  
2. India's sugar export subsidies constitute payments on the export 
financed by virtue of governmental action under Article 9.1( c) of 
the Agreement on Agriculture.   
101. In addition to constituting export subsidies under Article 9.1(a) of the Agreement on 
Agriculture, India's subsidies for sugar exports under the Scheme for Assistance to Sugar Mills, the 
Buffer Stock Scheme 2018, the Buffer Stock Scheme 2019, and the MAEQ Scheme 2019 also fall 
within Article 9.1(c) as payments on the export of sugar that are financed by virtue of governmental 
action.   
102. A measure constitutes an export subsidy under Article 9.1(c) if it meets the following elements: 
(i) there must be a " payment"; (ii) the payment must be "on the export"; and (iii) the payment must 
be "financed by virtue of governmental action, whether or not a charge on the public account is 
involved".  
103. Concerning the first element of Article 9.1(c) , the existence of a payment, as explained above, 
the Scheme for Assistance to Sugar Mills, the Buffer Stock Scheme 2018, the Buffer Stock Scheme 
2019, and the MAEQ Scheme 2019 all involve the provision of monies to sugar mills.131 The provision 
of monies under these schemes constitutes transfers of economic resources and, thus, "payments" 
under Article 9.1(c) of the Agreement on Agriculture.  
104. India's measures also meet the second element of Article 9.1(c)  as they involve payments "on 
the export". With respect to the Schem e for Assistance to Sugar Mills, the Buffer Stock Scheme 2018, 
and the Buffer Stock Scheme 2019, eligibility to receive the subsidies or the quantity thereof depend 
on sugar mills' compliance with the export requirements established in the MIEQ Orders. In the case 
of the MAEQ Scheme 2019, the subsidies are expressly made available only for sugar mills that 
exported at least 50% of their allocated MAEQ export quotas and are quantified in terms of metric 
tonne of exported sugar.  
105. Finally, India's measure s also meet the third element of Article 9.1(c),  as the payments at 
issue are "financed by virtue of governmental action". The payments under the four schemes in 
question are financed by the Indian Government pursuant to programmes established by the India n 
Government. Under all four schemes, the payments are provided by India's Department of Food and 
Public Distribution, in accordance with pre -established governmental programmes, namely the 
Scheme for Assistance to Sugar Mills, the Buffer Stock Scheme 2018 , the Buffer Stock Scheme 2019, 
and the MAEQ Scheme 2019, all of which were implemented through instruments issued by the 
Department of Food and Public Distribution.  
106. The above shows that India's sugar export subsidies under the Scheme for Assistance to Sugar 
Mills, the Buffer Stock Scheme 2018, the Buffer Stock Scheme 2019, and the MAEQ Scheme 2019 
all fall within the scope of Article 9.1(c) as payments on the export financed by virtue of governmental 
action. Given that India does not have reduction c ommitments in its Schedule of Concessions 
concerning export subsidies, by maintaining these measures, India acts inconsistently with its 
obligations under Articles 3.3, 8 and 9.1 of the Agreement on Agriculture.  
 
129 MAEQ Notification 2019, Exhibit JE -114, preamble.  
130 MAEQ Notification 2019 Exhibit JE -114, para 2(a).  
131 See above paras.  0-0. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  D. India errs in asserting that the complain ants must demonstrate an "actual" financial 
contribution  
107. India asserts that, to substantiate a claim concerning export subsidies under  
Article 9 of the Agreement on Agriculture, the complainants must demonstrate that the government 
"actually makes a financial contribution".132 India grounds its proposition in the definition of "subsidy" 
of Article  1.1(a)(1) of the SCM Agreement, a provision that offers relevant context for construing the 
meaning of the term "subsidy" under Article 9 of the Agreement on  Agriculture.133 India notes that, 
pursuant to Article  1.1(a)(1) of the SCM Agreement, a subsidy shall be deemed to exist if "there is 
a financial contribution".134 In India's view, "[t]he use of the operative term 'is' in Article 1.1(a)(1) 
indicates that a subsidy can be said to exist only where the government has actually  made a 'financial 
contribution' under the challenged measures".135  
108. Nothing in the Agreement on Agriculture or even the SCM Agreement, on which India relies as 
context, supports India's contention. The text of the Agreement on Agriculture contains no indication 
that export subsidies exist only when actual disbursements are  made.  
109. The SCM Agreement further contradicts India's point. The Appellate Body has clarified that a 
subsidy consisting of a "direct transfer of funds" encompasses a "conduct on the part of the 
government by which money, financial resources, and/or fi nancial claims are made available to a 
recipient".  The Appellate Body has thus clarified that what matters is whether the government makes 
available financial resources, not whether those financial resources have actually been paid.  
110. Similarly, a prio r WTO panel found that the challenged measure constituted a direct transfer 
of funds even though "some disbursements specifically envisaged" under the subsidy programme 
were yet to be made.  India also fails to mention that the definition of "subsidy" unde r the 
SCM Agreement includes a "potential transfer of funds", which implies that a subsidy can exist even 
if the funds have not been actually disbursed. In this connection, a previous panel observed that if a 
subsidy were deemed to exist only when "funds h ad actually been effectuated, the Agreement would 
be rendered totally ineffective and even the typical WTO remedy (i.e. the cessation of the violation) 
would not be possible".136  
111. India acknowledges that the complainants have provided "evidence to show  that the 
government has the legal authority to provide a financial contribution under the challenged measures 
or the government made certain budgetary allocations".   
112. Without prejudice to Guatemala's arguments above concerning the correct interpretat ion of 
Article 1.1(a)(1)(i) of the SCM Agreement, Guatemala notes that the record in these proceedings 
already contains evidence showing that the Indian government has made disbursements to sugar 
mills pursuant to the export subsidy schemes challenged by G uatemala:  
• With respect to the Scheme for Assistance to Sugar Mills for seasons 2015 -2016 and 2017 -
2018, India's national budget statements show that India disbursed INR 521 crores and  
INR 376 crores, respectively.137  
• With respect to the Buffer Stock Scheme 2018, In dia disbursed INR 200 crores.138 
• With respect to the Scheme for Assistance to Sugar Mills for season 2018/2019, one of India's 
biggest sugar mills received disbursements from the Indian government.139 
 
132 India's first written submission, para. 107.  
133 India's first written submission, para. 105.  
134 India's first written submission, para. 107 (original emphasis).  
135 Ibid. 
136 Panel Report, Brazil  – Aircraft , para. 7.13.  
137 Notes on Demands for Grants, 2020 -2021, Ministry of Consumer Affairs, Food and Public Distribution, 
Note 10, Exhibit JE -142. 
138 Notes on Demands for Grants, 2020 -2021, Ministry of Consumer Affairs, Food and Public Distribution, 
Note 13, Exhibit JE -142. 
139 Annual Report 2019 -20 of Dhampur Sugar Mills Limited, p. 161 (sub -note 1(i) – "Production subsidy 
from Government ", Exhibit JE -149.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  113. Thus, although not legally required under the Agreem ent on Agriculture or the SCM 
Agreements, the complainants have nevertheless produced evidence of actual disbursements by the 
Indian government of financial resources to sugar mills under the export subsidy schemes at issue.  
E. India incorrectly asserts t hat the complainants have failed to demonstrate the 
existence of a "benefit"  
114. India further argues that the complainants have failed to demonstrate the existence of a 
"benefit", and consequently the existence of a "subsidy".140 India also relies on Appellate Body case 
law to argue that the complainants "have failed to identify any benchmark or make any comparison 
with a benchmark in a relevant market to demonstrate the existence of a benefit".141  
115. India's arguments must be r ejected as they are predicated on a flawed understanding of the 
meaning of "benefit" in respect of the facts of this dispute. India's references to prior Appellate Body 
findings are misplaced as they were made in relation to measures that consisted of paym ents-in-
kind142 and purchases of goods by the Government.143 In both cases, the Appellate Body correctly 
found that a payment -in-kind and the provision of goods do not per se  entail a benefit, and thus the 
determination of the existence of a benefit required  a comparison with a market benchmark.  
116. However, in the case of India's export subsidies, the measures are neither payments -in-kind 
nor purchases of goods by the government. Rather, as explained by Guatemala, the monetary 
amounts provided by India can be described as "grants".144 In the case of grants, there is no need 
to make a comparison with a market benchmark in order to determine the existence of a benefit. In 
contrast to a payment -in-kind or a provision of goods, grants constitute non -reciprocal fi nancial 
contributions. Thus, as previous panels have found, by receiving a grant, the recipient is 
"automatically placed in a better position than it would otherwise have been without the grant"145 
because no entity acting pursuant to commercial considerati ons would make such unremunerated 
payments.146  
F. India has failed to demonstrate that the MAEQ Scheme 2019 is justified under 
Article  9.4 of the Agreement on Agriculture  
117. India alleges that the MAEQ Scheme 2019 provides export subsidies that fall with in the scope 
of Articles 9.1(d) and (e) and, therefore, are justified by the special and differential treatment under 
Article 9.4 of the Agreement on Agriculture.147 India has further asserted that the subsidies provided 
under the MAEQ Scheme 2019 "have a d irect relationship to the costs normally incurred towards"148 
marketing and transport and that India provides these subsidies "not exceeding the costs incurred 
towards these expenses".149 
118. As the party invoking the flexibilities of Article 9.4 and asserting that the MAEQ subsidies fall 
under Articles 9.1(d) and (e), India bears the burden of substantiating its legal defence and its factual 
assertions on this issue.150 India errs in stating that of Article 9.4 of the Agreement on Agriculture 
as an "au tonomous right" because it is different from a "typical exception" or a "defense".151 As India 
acknowledges, the language in Article 3.3 of the Agreement on Agriculture simply serves to "cross -
refer[]" to Article 9.4.152 A cross -reference does not have the e ffect of creating an autonomous right, 
as alleged by India. It simply means that, when applying the disciplines of Article 3.3, one must 
consider the provision of Article 9.4.  
 
140 India's first written submission, para. 110.  
141 India's first written submission, para. 112.  
142 Appellate Body Report , Canada – Dairy , para. 87.  
143 Appellate Body Report , Canada – Feed-in Tariff Program , para. 5.128.  
144 Guatemala's first written submission, para. 314.  
145 Panel Report, EC and certain Member States – Large Civil Aircraft , para. 7.1501. See also 
Guatemala's first written submission, paras. 254 and 315.  
146 Panel Report, US – Large Civil Aircraft (2nd complaint) , para. 7.1229.  
147 India's first written submission, paras. 114 -223. 
148 India's opening statement at the first substantive meeting, para. 15.  
149 India's comments of 27 April 2020, para. 55.  
150 Appellate Body Report, US – Wool Shirts and Blouses , p. 14.  
151 India's opening state ment at the second substantive meeting, para. 81.  
152 Ibid. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  119. India has failed to discharge its burden because it has not demonstrated th at the MAEQ 
subsidies are limited qualitatively and quantitively to the actual costs incurred for marketing and 
transport of exported sugar.153  
120. First, concerning the lack of qualitative connection to costs incurred for marketing and 
transport of sugar exports, the design and structure of the MAEQ Scheme 2019 do not support India's 
claim that these subsidies are provided to allow sugar mills to offset these costs. The MAEQ 
Notification 2019, which is the Notification issued by India's Department of  Food and Public 
Distribution that enacted the MAEQ Scheme 2019, clearly states that the purpose of this subsidy is 
to allow sugar mills to pay cane arrears.154 The very text of the MAEQ Notification 2019 thus 
contradicts India's assertions about the purpos e of these subsidies. The MAEQ Notification 2019 
openly states that sugar mills must use these subsidies to pay cane arrears.  
121. In fact, the MAEQ Notification 2019 even contains mechanisms to ensure that the subsidies 
are used for no other purpose than to pay cane arrears. To this end, the MAEQ Notification 2019 
instructs sugar mills to first open a bank account for cane farmers' use. Thereafter, "[t]he bank shall 
credit the amount of assistance to the farmers' accounts on behalf of the mills against can e dues 
payable".155 
122. Second, even assuming arguendo that the MAEQ subsidies are provided to offset costs of 
marketing and transport of sugar exports, the design and structure of the MAEQ Notification 2019 
reveal several reasons why these subsidies are n ot quantitively limited to the actual costs that sugar 
mills incur for marketing and transport of sugar exports.  
123. As noted, the subsidy under the MAEQ Notification 2019 takes the form of a lump sum provided 
to each sugar mill. The actual costs incurre d by the sugar mills are not factored into the calculation 
of this lump sum. The lump sum is calculated simply by multiplying the number of exported sugar 
tonnes by the flat rate stated in the MAEQ Notification 2019.156  
124. The flat rate, by definition, f ails to consider the number of circumstances that can result in 
varying costs incurred by sugar mills when exporting sugar from India. These different 
circumstances, as Guatemala will explain, include the fact that: (i) sugar mills in India make sales 
on an ex-mill basis or on a Free on Board ("FOB") basis, such that sugar mills incur no costs at all 
for internal transport and/or international transport; and that (ii) sugar mills located in different parts 
of India logically incur different transport costs due to their different distances from the mill to the 
port of exportation. Guatemala will address these two issues in turn.  
125. Additionally, the MAEQ Scheme 2019 provides subsidies for internal transport using a flat rate 
of INR 3'428 per tonne of sugar exported for all sugar mills in India. Yet, because sugar mills are 
located in different parts of the country, the cost of internal transport will vary greatly from one mill 
to another given the different distances from their premises to the port of shipme nt. It follows that, 
by applying a flat rate applicable to any sugar mill regardless  of its actual distance between its 
premises and the port of shipment, the design and structure of the MAEQ Scheme 2019 make it 
impossible to ensure that the subsidy for in ternal transport is limited to the actual costs in every 
export shipment.  
126. The export sales by sugar mills in the State of Maharashtra serve as a concrete example of 
the problem just described. In season 2019/2020, sugar mills located in Maharashtra a ccounted for 
42% of all sugar exports of India, making it India's second largest exporting State in that season.157 
A significant majority of Maharashtra's exports were shipped from the ports of Jawaharlal Nehru Port 
(JNPT) and Jaigad.158 The average distanc es from 11 selected exporting sugar mills in Maharashtra 
to JNPT and Jaigad ports are 431 km and 308 km, respectively.159 For those 11 mills, the average 
freight rail costs to the ports of JNPT and Jaigad are INR 489 and INR 817, respectively.160 These 
 
153 See Guatemala's response to Panel's question 42; Guatemala's opening statement at the first 
substantive meeting, paras. 4.21 -4.26; Guatemala's closing statement at the first substantive meeting, 
paras. 3.9-3.13; and Guatemala's response to Panel's question 56(a).  
154 MAEQ Notification 2019, Exhibit JE -114, para. 1.  
155 MAEQ Notification 2019, Exhibit JE -114, para. 5(ii). 
156 Guatemala's first written submission, paras. 236-238. 
157 Green Pool Commodity Specialists, Consultancy Report, February 2021, Table 1, Exhibit JE -165.  
158 Green Pool Commodity Specialists, Consultancy Report, February 2021, Table 1, Exhibit JE -165. 
159 Green Pool Commodity Specialists, Consultancy Report, February 2021, Table 3, Exhibit JE -165. 
160 Green Pool Commodity Specialists, Consultancy Report, February 2021, Table 4, Exhibit JE -165. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  costs of internal transport are significantly lower than the flat rate of INR 3'428 provided under the 
MAEQ Scheme 2019.  
127. India's communications to certain entities inquiring about transport costs for food grains,  and 
as well as the response by India's Mini stry of Railways161, cannot possibly indicate the actual 
transport costs for sugar  in India. The complainants have submitted evidence showing that, contrary 
to India's statements, the rates indicated India's Ministry of Railways for good grains are not 
applicable to transport of sugar.162 
128. India's exercise of inquiring about this information is therefore inadequate to establish the 
actual transport costs of sugar, let alone to show that these actual transport costs do not exceed the 
actual costs of the tr ansport services described in Articles 9.1(d) and (e) of the Agreement on 
Agriculture.  
129. For these reasons, Guatemala submits that India has failed to prove that the subsidies under 
the MAEQ Scheme 2019 fall within the scope of Articles 9.1(d) and (e) o f the Agreement on 
Agriculture. Consequently, India cannot avail itself of the flexibilities afforded under Article 9.4 of the 
Agreement on Agriculture.  
VII. INDIA'S EXPORT SUBSIDIES ARE INCONSISTENT WITH ARTICLE 3.1(A) 
OF THE SCM AGREEMENT  
130. Guatemala claims that India's export subsidies are also inconsistent with Article 3.1(a) of the 
SCM Agreement, which prohibits "subsidies contingent, in law or in fact, whether solely or as one of 
several other conditions, upon ex port performance […]". India maintains subsidies contingent on 
export performance despite the fact that its Schedule of Concessions contains no entitlements for 
these subsidies.  
131. Guatemala's claim under Article 3.1(a) of the SCM Agreement is largely ba sed on the same 
elements already substantiated in Guatemala's claim under Article 9.1(a) of the Agreement on 
Agriculture given the similarity of both legal standards.163  
132. In response to Guatemala's claim under the SCM Agreement, India has advanced one single 
distinct argument – that the disciplines of Article 3 of the SCM do not apply to India at the moment 
because India enjoys an additional transition period which allegedly ends in 2025.164 India's 
contention must fail as it is based on a flawed interpr etation of Article 27 of the SCM Agreement.  
133. India's argument is completely without legal foundation. Its contention is evidently not 
supported by the text of Article 27.2 of the SCM Agreement. Article 27.2(a) states that the prohibition 
of Article 3.1 (a) relating to export subsidies does not apply to "developing country Members referred 
to in Annex VII". In contrast to Article 27.2(b), no additional transition period is stipulated in 
Article  27.2(a) that would apply once a developing country graduates from Annex VII.  
134. The only transition period stated in Article 27.2 is found in Article 27.2(b), which allowed 
developing countries in general (i.e. those not listed in Annex VII) to benefit from the non -application 
of Article 3.1(a) during a period of eight years which counted from 1995, the date of entry into force 
of the WTO Agreement, and was originally intended to expire in 2003. Certain developing countries 
sought and received extensions of this original eight -year period, something already envisag ed under 
Article 27.4. In 2007, the General Council adopted a Decision clarifying that the final transition period 
under Article 27.2(b) would expire on 31 December 2015, with no possibility of any further 
extension.165 Thus, even if India attempted to some how rely on the eight -year period of 
Article  27.2(b), the 2007 Decision of the General Council confirmed that this period expired on 
31 December  2015. Consequently, there is nothing in Article 27.2 that could support India's claim to 
 
161 Cost Estimates of movement of food grains to Domestic & International market, Ministry of Railways, 
Exhibit IND -23. 
162 Government of India, Ministry of Railways, Rates Circular No. 19 of 2018, 31 October 2018, Exhibit 
JE-175, Annexure II.  See also Guatemala's comment to India's response to Panel's question 82.  
163 See Guatemala 's first written submission, paras. 310 -312. 
164 India's first written submission, para. 127.  
165 Decision of 27 July 2007 – Article 27.4 of the Agreement on Subsidies and Countervailing Measures, 
WT/L/691, circulated on 31 July 2007, sixth recital and paragra ph 1(d).  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  an additional transiti onal period for graduating Annex VII countries.  
135. As explained by Guatemala in its opening statement at the first substantive meeting,166 India's 
proposed interpretation of Article 27.2 is legally untenable. In fact, it was outright rejected by the 
panel  in India – Export Related Measures (DS541) after examining the same argument that India is 
advancing in this dispute.167 
136. In conclusion, India's contention that it benefits from an additional eight -year phase -out period 
that would end in 2025 must be r ejected by this Panel. India became subject to the disciplines under 
Article 3.1(a) of the SCM Agreement upon its graduation from Annex VII in 2017. Guatemala's view 
is widely supported by Canada168, the European Union169, Japan170, and the United States.171 
VIII. GUATEMALA'S REQUEST FOR LEGAL FINDINGS AND RECOMMENDATIONS  
137. For the reasons stated in this submission, given that India's Schedule of Concessions does not 
contain domestic support commitments,172 Guatemala requests the Panel to find that India acts  
inconsistently with Article 7.2(b) of the Agreement on Agriculture by providing domestic support in 
excess of the 10% de minimis  level. In the alternative, if the Panel were to find that India has 
scheduled commitments of "zero" or "nil", Guatemala reques ts the Panel to find that India is providing 
domestic support in excess of its "zero" or "nil" commitment in violation of Articles 3.2 and 6.3 of 
the Agreement on Agriculture.173  
138. Guatemala also requests the Panel to find that India's subsidies under the Scheme for 
Assistance to Sugar Mills, the Buffer Stock Scheme 2018, the Buffer Stock Scheme 2019, with 
operate in conjunction with the MIEQ Orders, and the subsidies under MAEQ Scheme 2019 constitute 
export subsidies under Articles 9.1( a) and (c) of the Agreement on Agriculture, for which India did 
not undertake reduction commitments, and thus give rise to a violation of India's obligations under 
Articles 3.3, 8, and 9.1 of the Agreement on Agriculture; and constitute prohibited export s ubsidies 
within the meaning of Article 3.1(a) of the SCM Agreement.  
139. Pursuant to Article 19.1 of the DSU, Guatemala requests that the Panel recommend that India 
bring its measures into conformity with its obligations under the Agreement on Agriculture and the 
SCM Agreement. With respect to the measures that are prohibited s ubsidies under Article 3.1(a) 
of the SCM Agreement, Guatemala requests that the Panel, in accordance with Article 4.7 of the 
SCM Agreement, recommend that India withdraw its measures without delay within a time -period 
specified by the Panel. 
 
166 Guatemala's opening statement at the first substantive meeting, paras. 4.29 -4.36.  
167 Panel Report, India – Export Related Measures , para. 7.69.  
168 Canada's oral statement at the first substantive meeting, paras. 10 -11. 
169 The European Union's oral statement at the first substantive meeting, para. 22.  
170 Japan's oral statement at the first substantive meeting, paras. 10 -12. 
171 The United States' third  party submission, paras. 55 -70. 
172 Guatemala's first written submission, paras. 109 -111; see also India's response to Panel's  
question 46.  
173 Guatemala's responses to Panel's questions 15(a) and 23(a).  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
 
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  ANNEX B -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDIA  
A. EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION & OPENING 
STATEMENT AT THE FIRST VIRTUAL MEETING  
I. INTRODUCTION  
1. The Government of India has adopted certain policy tools that are aimed to address  the 
livelihood concerns of India's largely low -income, resource -poor sugarcane farmers. Australia, 
Brazil and Guatemala have challenged some of India's Central and State -level measures 
concerning sugar and sugarcane in these disputes.  
2. India in these su bmissions will demonstrate that the complainants failed to make a prima facie  
case with respect to their claims. India also made requests for preliminary ruling to exclude 
certain measures that fall outside the terms of reference of the Panel.  
II. FACTUAL BACKGROUND AND THE MEASURES AT ISSUE  
3. The principal legislation which forms  the basis of the policy tools with respect to sugarcane 
and sugar is the Essential Commodities Act, 1955 (" ECA"). Pursuant to the ECA, the Central 
Government has passed the Sugar (Control) Order, 1966 and the Sugarcane (Control) Order 
in 1966.  
4. It is al so relevant to note that the Central Government does not procure or purchase any 
quantities of sugar or sugarcane under the ECA or under any other law.  
A. Central level measures  
(i) Fair and Remunerative Price  
5. In 2009, the Central Government amended the Sugarcane (Control) Order, 1966 to introduce 
the process of prescribing the Fair and Remunerative Price (" FRP") for sugarcane. Section 3 
(1) of the amended Sugarcane (Control) Order specifies that the "price of sugarcane is to be 
paid by produc ers of sugar or their agents for the sugarcane purchased by them". In other 
words, sugar mills purchase sugarcane from sugarcane producers/farmers at the FRP. There 
is no obligation on the Central Government to either procure the sugarcane or pay the FRP t o 
sugarcane farmers.  
6. The Central Government through the Department of Food and Public Distribution (" DFPD ") 
announces the FRP through official communications for each sugar season that commences 
from the month of October in any given year and runs up -to the month of September in the 
immediately following year. The FRP amount may vary depending upon the recovery rate of 
the sugarcane.  
(ii) Central level measures other than FRP  
7. Other than FRP there are certain other Central level measures identified by  the complainants 
that are implemented by the Central Government. These measures may enable the 
government to make payments to sugar mills/ sugarcane farmers:  
(a)  Scheme for extending production subsidy to sugar mills for the 2015 –16 season  
(b) Schemes f or Assistance to Sugar Mills for the 2017 –18 and 2018 –19 sugar 
seasons  
(c)   Scheme for Extending Financial Assistance to Sugar Undertakings for the 2013 –
14 sugar season  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  (d)   Scheme for Extending Financial Assistance to Sugar Undertakings for the 2014 –
15 and 2018 -19 sugar season  
(e)  Scheme for Creation and Maintenance of Buffer Stock of 2018 –19 and 2019 – 
20 (collectively, " Buffer Stock Schemes ") 
(f)  Raw Sugar Export Incentive Scheme for the 2014 –15 sugar season  
(g)  Scheme for defraying expenditure towa rds internal transport, freight, handling 
and other charges to facilitate export" for the 2018 –19 sugar season  
(h)  Scheme for providing assistance to sugar mills for expenses on marketing costs 
including handling, upgrading and other processing costs and costs of 
international and internal transport and freight charges on export of sugar" for 
the 2019 –20 sugar season (" MAEQ Scheme ") 
B.    State level measures  
8. Certain States have enacted laws for the regulation, purchase and supply of sugarcane. Some 
States under such laws set an amount that may be different from FRP for the purchase of 
sugarcane by sugar mills. Such prices by the relevant States are referred to as the State 
Advised Price (" SAP"). Further, some States may have implement ed other measures for sugar 
mills/ sugarcane farmers.  
(i)   SAP 
9. Certain States may have prescribed SAP by virtue of the powers granted under the relevant 
State legislations. However, currently, the States that set an SAP are (i) Haryana, (ii) Punjab, 
(iii) Uttarakhand and (iv) Uttar Pradesh. Many other States, in particular Andhra Pradesh, 
Bihar and Tamil Nadu no longer set an SAP. Therefore, alleged SAP for the States of Andhra 
Pradesh, Bihar and Tamil Nadu do not fall within the Panel's terms of refere nce 
(ii)   State level measures other than SAP   
10. Other than the SAP, some states in India have implemented certain other programs to allow 
the provision of support to sugar mills/ sugarcane farmers. However, it is relevant to note that 
many of these measures were no longer in force as of the date of the establishment of the 
Panel.  
III. REQUEST FOR PRELIMINARY RULING  
11. India submits that a number of measures that the complainants have raised or referred to in 
their respective requests for estab lishment of the Panel or in their respective first written 
submissions fall outside the scope of the Panel's terms of reference.  
A. Legal standard with respect to Panel's terms of reference under Article 6.2 and 
Article 7.1 of the DSU  
12. The Appellate Bod y in EC – Chicken Cuts  has found that the "specific measures at issue" under 
Article 6.2 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes  ("DSU") covers only those measures that were "in existence" when a panel was 
establis hed and noted as follows: "The term "specific measures at issue" in Article 6.2 suggests 
that, as a general rule, the measures included in a panel's terms of reference must be 
measures that are in existence at the time of the establishment of the panel ."1  
13. Therefore, measures that are no longer in existence at the time of the establishment of a 
panel do not fall within its terms of reference. As a corollary, measures enacted after the 
establishment of a panel are also not within its terms of reference.  
B. Measures that fall outside the scope of the terms of reference of the Panel  
 
1 Appellate Body Report, EC – Chicken Cuts , para. 115.  
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  (i) Measures that have expired prior to the establishment of the Panel  
 
14. All three complainants have referred to or challenged several measures pertaining to sugar 
seasons 2014 -15 through 2019 -20.  
15. India submits that the FRP set for the sugar seasons 2014 -15 and 2015 -16 has expired and 
was not in force at the time of the es tablishment of the Panel. Accordingly, the measures 
notifying the FRP for the sugar seasons 2014 -15 and 2015 -16 fall outside the scope of the 
Panel's terms of reference and the Panel has no jurisdictional basis to make legal findings with 
respect to FRP fo r the said sugar seasons.  
16. Additionally, India also submits that the following Central -level and State -level measures did 
not exist at the time of the establishment of the Panel:  
(a)   Scheme for extending production subsidy to sugar mills for the 2015 –16 season;  
(b)   Scheme for Extending Soft Loan to Sugar Mills for the 2014 –15 sugar season;  
(c)   Raw Sugar Export Incentive Scheme for the 2014 –15 sugar season;  
(d)   SAP with respect to State of Andhra Pradesh including for the sugar seasons 2015 -
16 an d 2016 -17; 
(e)  SAP with respect to the State of Haryana for the sugar seasons 2014 -15, 2015 -16, 
2017-18; 
(f)  SAP with respect to the State of Punjab for the sugar seasons 2014 -15, 2015 -16, 
2017-18; 
(g)  SAP with respect to the State of Tamil Nadu for the sugar seasons 2014 -15, 2015 -
16, 2017 -18; and  
(h)  SAP with respect to the State of Uttar Pradesh for the sugar season 2015 -16. 
17. Further, the complainants have also challenged purchase tax remission schemes of certain 
States, namely, Andhra Pradesh, Bihar, Maharashtra, Telangana, and Uttar Pradesh. India 
submits that with the introduction of the Central Government Goods and Service Tax (" GST" ) 
in 2017, the said purchase tax remission has been discontinued with effect from 14 November 
2018.   
(ii) Measures that were enacted after the establishment of the Panel.  
18. All three complainants have challenged the MAEQ Scheme. The MAEQ Scheme was introduced 
by the Government of India on 12 September 2019 for the sugar season 2019 -20 (i.e. 1st 
October 2019 to 3 0th September 2020). The Panel was established on 15 August 2019. 
Therefore, the MAEQ came into existence much after the establishment of this Panel.  
IV. RESPONSE TO CLAIMS ON DOMESTIC SUPPORT UNDER THE AOA.  
19. The complainants have alleged that India's FRP measures at the federal level and SAP 
measures in certain States constitute "market price support" under paragraph 8 of Annex 3 
of the Agreement on Agriculture (" AoA") and that India's domestic support for sugarcane is 
above the applicable de m inimis  level i.e. 10% of the India's total value of sugarcane 
production in the relevant year.  
20. Australia and Brazil have argued that India has acted inconsistently with Article 7.2 of the AoA 
or, in the alternative with Articles 3.2 and 6.3 of the AoA.  Guatemala, on the other hand, has 
argued that India has acted inconsistently with its obligations under Article 3.2, 6.3 and 7.2(b) 
of the AoA.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  A.  The complainants have failed to demonstrate that India has acted inconsistently 
with its obligations under Articles 3.2 and 6.3 and/or Article 7.2 of the AoA.  
21. India submits that the complainants have failed to demonstrate that India has acted 
inconsistently with its obligations under Article 3.2 and 6.3 and/or Article 7.2 of the AoA. 
Specifically, India sub mits that the complainants have not met their burden of demonstrating 
that the Fair and Remunerative Price/State Advised Price measures qualify as a "market price 
support" under Annex 3 of the AoA.  
22. Annex 3, or any other provision of the AoA, does not define the phrases "market price support" 
or "non -exempt direct payments". That being said, paragraph 2 offers guidance on what may 
constitute as a market price support. Paragraph 2 delineates the scope of subsidies under 
paragraph 1 of Annex 3. It states that the subsidies include both budgetary outlays and 
revenue foregone by governments or their agents. Therefore, a market price support could be 
by a government or its agent only if the government or its agent pays the administered price 
and procures the specified product at such administered price.  
23. India submits that the sugar mills that purchase sugarcane from the farmers at the Fair and 
Remunerative Price/State Advised Price are neither government nor its agents as they do not 
perform any function o f a "governmental character".  
B.   The prior panel reports relied on by the complainants are either inapplicable or do 
not support the views of the complainants.  
24. The complainants rely on certain previous panel reports to argue that FRP/SAP qualifies a s an 
applied administered price (" AAP") under paragraph 8 of Annex 3 of the AoA.  
25. India submits that there is no rule of binding precedent or stare decisis within the WTO dispute 
settlement process. Without prejudice, India submits that the panel repor ts relied on by the 
complainants do not support their claims as these reports concerned substantially different 
facts and none of these reports articulated the meaning of "market price support" or that 
"market price support" includes payments by private ac tors. 
C. The complainants have not met their burden to demonstrate that the support 
through India's other domestic support measures is in excess of the de minimis 
limit.  
26. The complainants have alleged that India maintains certain other domestic support measures 
in addition to the FRP/SAP measures which, when taken into account, further increase the 
product specific AMS with respect to sugarcane. These additional measures have been 
classified into two categories (i) measures aimed to maintain the price gap between the AAP 
and Fixed External Reference Price (" FERP "); and (ii) other non -exempt direct payments/ 
subsidies.  
27. Without prejudice to India's views on characterisation of these measures, the complainants 
have not provided any evidence/calcu lation as to how the total support under these other 
alleged domestic support measures (i.e. other than the alleged support under FRP/SAP 
measures) exceeds the de minimis  limit applicable to India.  
28. In view of the above, India submits that the complaina nts have failed to make a prima facie  
case that India's alleged product -specific domestic support is in excess of the de minimis  limit 
under the AoA.  
V. RESPONSE TO CLAIMS ON EXPORT SUBSIDIES UNDER THE AOA  
29. India notes that all three complainants in the  present disputes have alleged that India provides 
subsidies to its sugar producers that are contingent upon export performance and therefore, 
not authorized by the AoA. The measures identified by the complainants in this regard are as 
follows:  
(a) Funds p rovided through the following schemes:  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  (i)  Scheme for extending production subsidy to sugar mills for the 2015 –
16 season;  
Scheme for Assistance to Sugar Mills for the 2017 –18 sugar season; and  
(ii)  Scheme for Assistance to Sugar Mills for the 2018 –19 sug ar season.  
(iii)  (Collectively, " Schemes for Assistance to Sugar Mills ") 
(b) Reimbursement of carrying costs of maintaining Buffer Stocks provided through 
the Buffer Stock Schemes  
(c)  Funds towards marketing and transport costs provided under the MAEQ Sc heme.  
A. Legal standard under the AOA  
30. The AoA does not define the term "subsidy". However, it defines the phrase "export subsidies" 
as referring to subsidies contingent upon export performance, including the export subsidies 
listed in Article 9 of the AoA. Given the express definition of the term "subsidy" under the 
SCM Agreement, it may provide relevant context in construing the meaning of the term 
"export subsidies" under the AoA. Hence, the twin requirements of: (i) existence of financial 
contrib ution and (ii) conferment of benefit thereby are relevant for existence of a "subsidy" in 
context of Article 9 of the AoA – which refers to "export subsidies".  
31. In addition to the above definition, footnote 1 of the SCM Agreement, appended to Article 1,  
also excludes certain types of revenue foregone by the government from the definition of a 
"subsidy".  Footnote 1 which refers to Annexes I through III of the SCM Agreement essentially 
stipulates the "excess remissions principle". It describes two groups of measures that "shall 
not be deemed to be a subsidy", provided they are also in accordance with the Note to Article 
XVI of the GATT 1994 and Annexes I to III of the SCM Agreement. These two groups of 
measures are:  
(a)  the exemption of an exported produc t from the duties or taxes borne by the like 
product when destined for domestic consumption; or  
(b)  the remission of such duties or taxes in amounts not in excess of those which 
have accrued.  
32. Since the concept of export subsidy under the SCM Agreement  offers relevant context for 
understanding the term "export subsidy" under Article 9 of the AoA, the interpretation of 
"export subsidy" under Article 9 of the AoA cannot be any different. The existence of an export 
subsidy under Article 9 of the AoA must t herefore, take into account that the 
exemption/remission of duties and taxes levied on like products destined for domestic 
consumption cannot be considered export subsidies, to the extent that they do not constitute 
an "excess remission". India submits tha t such an interpretation of the term export subsidy 
under the AoA does not lead to any conflict between the AoA and SCM Agreement under Article 
9 of the AoA.  
33. Turning to the specific disciplines governing export subsidies under the AoA, Article 9.1 lists 
out those export subsidies that are subject to reduction commitments under the AoA. 
However, it is important to note that Article 9.4 of the AoA provides a spec ific allowance to 
developing country Members that permits them to provide marketing cost subsidies listed 
under Article 9.1(d) and internal transport subsidies listed Article 9.1(e) in connection with 
exportation, during the "implementation period".  
34. India therefore submits that, as a developing country Member, it is entitled to grant export 
subsidies for marketing and transportation costs in accordance with Article 9.4 of the AoA.  
B. The complainants have failed to make a prima facie case that India h as acted 
inconsistently with its obligations under Articles 3.3, 8, 9.1(a), 9.1(c) or 
Article  10, as the case may be.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  (i) The complainants have failed to demonstrate that a subsidy exists within the 
meaning of the AoA.   
35. First, India submits that the c omplainants have not met their burden to demonstrate "making" 
of a financial contribution such that they can show there is a financial contribution. 
Article  1.1(a)(1) provides that "a subsidy shall be deemed to exist if [inter alia] there is a 
financial co ntribution by a government . . ."  The use of the operative term "is" in 
Article  1.1(a)(1) indicates that a subsidy can be said to "exist" only where the government 
has actually made a "financial contribution" under the challenged measures.  
36. At most, t he complainants have provided certain evidence to show that the government had 
the legal authority to provide a financial contribution under the challenged measures or the 
government made certain budgetary allocations. However, the complainants have not 
presented any evidence of the extent to which, if any, a government entity actually makes  a 
financial contribution pursuant to those measures.  Accordingly, the complainants have failed 
to demonstrate that a subsidy exists within the meaning of the AoA.  
37. Second, India submits that since the complainants have failed to demonstrate the existence 
of a financial contribution, they have also necessarily failed to demonstrate existence of a 
benefit. The complainants' claim on existence of a benefit is conclusion ary and they have failed 
to identify any benchmark or make any comparison with a benchmark in a relevant market to 
demonstrate the existence of a benefit. Rather, the complainants, with respect to all the 
challenged measures have merely assumed that a bene fit exists.  
38. In view of the above, India submits that the complainants have failed to demonstrate the 
existence of a subsidy under Article 9 of the AoA and consequently, have also failed to demonstrate 
a breach of Articles 3.3, 8 and/ or 10 of the AoA.  
C.  The MAEQ Scheme is consistent with India's obligations under the AoA and 
SCM Agreement  
39. Assuming arguendo that the Panel finds the MAEQ Scheme to fall within its terms of reference, 
India submits that for the reasons stated above, the complainants have not met their burden 
to demonstrate the existence of a subsidy.  
40. Without prejudice to the above, India submits that the MAEQ Scheme falls within the scope of 
Articles 9.1(d) and 9.1(e) of the AoA and is therefore, permitted in accordance with Artic le 9.4 
of AoA.   
41. Paragraph 3(I)(a) of the MAEQ Scheme envisages payment to sugar mills at a specified rate 
towards expenses incurred for the marketing including handling, quality up -gradation, 
debagging, re -bagging and other processing costs of sugar. The costs listed herein fall 
squarely within the meaning of Article 9.1(d) as specific costs incurred as a part of  and during  
the process of selling sugar on the export market. In the same vein, paragraph 3(I)(c) of the 
MAEQ Scheme envisages payment to sug ar mills at a specified rate towards ocean freight 
incurred against shipment from Indian ports to destination countries. Ocean freight is an 
expense that falls squarely within the meaning of "international transport and freight" 
mentioned in article 9.1(d) . Paragraph 3(I)(c) of the MAEQ Scheme envisages payments at 
specified rates towards internal transport and freight charges including loading, unloading, 
and fobbing. This again, falls squarely within the ambit of Article 9.1(e).  
42. While the complainants , particularly Brazil and Australia, have claimed that the alleged export 
subsidies in these disputes do not fall within Articles 9.1(d) and (e)of the AoA, they have failed 
to offer any particularised analysis as to why the MAEQ Scheme would not be covered  under 
Article 9.1(d) and (e) of the AoA. India submits that nothing in the text of Article 9.1(d) and 
(e) sets out the manner in which a Member State may grant subsidies under the heads as 
specified in these provisions. The complainants have failed to pro vide any argument/ evidence 
to substantiate their claim that MAEQ Scheme does not fall under Article 9.1(d) and 9.1(e).  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  D. The DFIA Scheme does not constitute a subsidy under the AoA.  
43. India has explained in subsequent paragraphs that the DFIA Scheme is  excluded from the 
scope of subsidy under the SCM Agreement and accordingly, it does not qualify as a subsidy 
under the AoA as well.  
VI. RESPONSE TO CLAIMS UNDER THE SCM AGREEMENT  
A. Article 3 of the SCM Agreement is not applicable to India  
44. At the outset, India submits that Article 3 of the SCM Agreement is not applicable to it. 
Article  27 of the SCM Agreement recognises the special & differential treatment accorded to 
developing country Members. India submits that Article 27.2(b) of the SCM Agreeme nt 
continues to apply to members who graduate from Annex VII(b).  
45. Article 27.2(b) provides a phase -out period of 8 years to the developing country Members for 
prohibited export subsidies under Article 3. India submits that the eight -year phase -out perio d 
in Article 27.2(b) of the SCM Agreement is to be granted to all Annex VII developing country 
Members when they graduate from Annex VII. Such an interpretation is required by the 
general rules of treaty interpretation provided in Article 31 of the Vienna Convention of the 
Law of Treaties (" VCLT ") and is supported by the supplementary means of interpretation 
provided in Article 32 of the VCLT.  
46. The principle of effectiveness has been read into Article 31(1) of the VCLT and has been 
recognised as a cardinal rule of treaty interpretation by all international adjudicatory bodies, 
including the WTO Appellate Body. Specifically, a strictly literal interpretation of 
Article  27.2(b), in isolation of the scheme of organization of Article 27.2, Annex VII(b),  and 
other provisions of Article 27, deprives the Annex VII countries of the special treatment 
envisaged under Part VII of the SCM Agreement and negates the mandatory language of 
Annex VII (b), which requires that a developing country Member that graduates  from Annex 
VII "shall be subject" to the provisions which are applicable to other developing country 
Members "according to" paragraph 2(b) of Article 27, i.e. an eight year phase out period. An 
interpretation of Article 27.2 (b) that counts the period of eight years from the entry into force 
of the SCM Agreement would lead to a situation wherein developing country Members listed 
in Annex VII are not subject to the same  treatment .  
47. India submits that its interpretation is further supported by Articles 2 7.4 and 27.5 of the SCM 
Agreement and that these provisions must be read harmoniously to give full effect to Article 
27 of the SCM Agreement. Article 27.4 of the SCM Agreement accounts for the possibility of 
different phase out periods applying to those gr aduating from Annex VII at different times. 
This is further supported by Article 27.5 which provides Annex VII countries with an eight -
year phase -out period for export subsidies where a product has reached export 
competitiveness.  
48. Further, Article 32 o f the VCLT provides for recourse to "[s]upplementary means of 
interpretation". Accordingly, India submits that due regard must be given to the negotiating 
history of Article 27 of the SCM Agreement to arrive at an interpretation that is both in line 
with t he object and purpose of the SCM Agreement as well as the principle of effectiveness. 
India's interpretation is supported by the Draft Texts formulated by the Chairman of the 
Negotiating Group for the SCM Agreement, which demonstrate that the purpose of Ar ticle 27 
was to allow developing country Members variable periods for phasing out export subsidies 
that were in accordance with their specific levels of development.  
49. In its submissions, Australia has relied on the panel report in India – Export Relate d Measures2 
to argue that Article 3 of the SCM Agreement applies to India. However, India submits that 
the interpretation of Article 27 developed by the panel in that dispute is not binding and has 
no legal effect on the present disputes.  
 
2 Panel Report, India – Export Related Measures , para. 7.74.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  B.  Without prej udice, Australia and Guatemala have failed to demonstrate that a 
subsidy exists within the meaning of the SCM Agreement.  
50. Without prejudice to the above, India submits that Australia and Guatemala have failed to 
meet their burden to demonstrate the exis tence of a subsidy within the meaning of the SCM 
Agreement. Article 1.1 of the SCM Agreement sets out two elements that are required to exist 
for a measure to be deemed a subsidy i.e. there is a financial contribution by a government, 
or any public body an d a benefit thereby is conferred, which have not been demonstrated in 
the present case.  
51. Additionally, with respect to the MAEQ Scheme, India has demonstrated that the measure is 
expressly authorized under the AoA. Accordingly, in view of Article 21.1 of the AoA and 
Article  3 of the SCM Agreement, the MAEQ Scheme is outside the scope of the 
SCM Agreement.  
52. Furthermore, the DFIA Scheme does not constitute a subsidy within the meaning of the 
SCM Agreement. Footnote 1 to the SCM Agreement sets out those  measures that are not 
deemed to be a subsidy i.e., where there is a remission of duties or taxes on exported products 
that are not in excess of those accrued. Footnote 1 refers to Annexes I through III of the SCM 
Agreement. Annex I of the SCM Agreement pr ovides an illustrative list of export subsidies. 
Footnote 1 to the SCM Agreement must be read with paragraphs (g), (h) and (i) of Annex I.  
53. Therefore, any remission or drawback of import charges on inputs (that are consumed in the 
production of the expo rted product) not in excess of those levied on imported inputs is not an 
export subsidy.  
54. The DFIA Scheme provides drawback of import charges (i.e. exemption from payment of basic 
customs duty) levied on imported input (i.e. raw sugar) that is used in production of exported 
products (i.e. white sugar). Such drawback is not in excess of the basic customs duty levied 
on imports of raw sugar and accordingly, the DFIA Scheme does not constitute a subsidy 
under the SCM Agreement. For the same reasons, it als o does not constitute an export subsidy 
under the AoA.  
VII. RESPONSE TO CLAIMS ON NOTIFICATION REQUIREMENTS UNDER THE GATT 1994, 
THE AOA AND THE SCM AGREEMENT  
55. In addition to the substantive claims set out above, Australia has separately also raised cla ims 
with respect to India's notification obligations under various WTO Agreements.  
56. As India has explained above, the complainants have failed to establish that the measures at 
issue in these disputes meet the definition of a "subsidy" as understood un der the 
SCM Agreement as well as the AoA. Consequently, the complainants have also failed 
to establish that India was obligated to notify these measures pursuant to Article 25 of the 
SCM Agreement and Article XVI of the GATT.  
57. With respect to the AoA, I ndia submits that Article 18 of the AoA does not place any obligations 
regarding notifications on Members but rather vests the Committee on Agriculture with the 
discretion to determine the conduct of the review process including the frequency and form of 
notifications. In this regard, India notes that with respect to export subsidies the Committee 
on Agriculture uses hortatory language in recommending notifications by Members.  
58. Similarly, as India has explained above, the complainants have failed to esta blish that the 
measures at issue in these disputes meet the definition of domestic support as understood 
under the AoA. Nonetheless India notes that the Committee on Agriculture again, uses 
hortatory language making clear that the notification obligations are suggestive in nature and 
not a binding obligation . 
59. In light of the above, India submits that it has not violated any notification requirements under 
the AoA, SCM Agreement or the GATT 1994.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  B. EXECUTIVE SUMMARY OF INDIA's RESPONSE TO THE COMPLAINAN TS' COMMENTS 
ON ITS REQUEST FOR A PRELIMINARY RULING  
I.  Introduction  
60. India, in its request for a preliminary ruling, requested that the Panel find certain measures 
to be outside  the scope of its terms of reference because these measures were not in existence 
at the time of the establishment of the Panel as specified under A rticle 6.2 and 7.1 of the DSU. 
61. India notes that the complainants submitted separate comments on India's request for a 
preliminary  ruling. In terms  of paragraph 3(4) of the Working Procedures of the Panel 
("Working Procedures "), India chose to present a single response to the comments 
submitted by the complainants dated 1 April 2020.  
A. Measure versus legal instrument  
62. The complainants have sought to create an artificial distinction between a "measure" and a 
"legal instrument". This artificia l distinction is not only incorrect but also attempts to extricate 
a measure from the relevant legal instrument when the two are inextricable.  
63. Article 6.2 read with Article 7.1 of the DSU which govern the terms of reference of a panel do 
not make any d istinction between a measure and a legal instrument. Prior panel reports and 
the Appellate Body reports have also used references to measures and legal provisions/ 
instruments interchangeably.  
64. Without prejudice to the above, assuming arguendo , that a m easure is distinct from a legal 
instrument , a measure does not have an independent existence in absence of the underlying 
legal instrument, and certainly not in the facts of the present disputes. If the measure does 
not in itself exist without the legal in strument, the measure cannot be said to be in existence 
once the underlying legal instrument expires.  
B. Legal standard with respect to Panel's terms of reference under Article 6.2 and 
Article 7.1 of the DSU  
65. India reiterates its position with respect t o the legal standard under Articles 6.2 and 7.1 of the 
DSU as it has specified in its first written submission . 
66. In EC – Selected Customs Matters3, the Appellate Body identified two circumstances under  
which a measure that was not in existence at the time of the establishment of a panel may be 
included within its terms of reference. India will demonstrate that the complainants have failed 
to establish that the measures India seeks to exclude from the te rms of reference of the Panel 
fall within such circumstances.  
(i) Measures that have expired prior to the establishment of the Panel  
(a)  FRP for the sugar seasons 2014 -15 and 2015 -16 as well as SAP for certain 
states.  
(b) Scheme for extending production s ubsidy to sugar mills for the 2015 –16 
sugar season.  
(c)  Scheme for soft loan for the 2014 -15 sugar season  
(d) Raw Sugar Export Incentive Scheme for the 2014 –15 sugar season.  
67. India disagrees with the complainants' characterization of the above measure s as simply an 
instrument . As India has submitted earlier, there is no distinction between a measure and a 
legal instrument.  
68. India submits that each of these measures were applicable for a particular sugar season and 
the relevant period of such sugar season has already lapsed and that none of the complainants 
 
3 Appellate Body Report, EC – Selected Customs Matters , para. 184.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  have demonstrated the above measures were in existence at the time of establishment of the 
Panel or continue to be in effect impairing the benefits of the complainants under a covered 
agreement. T he legislative provisions under which these measures are issued are merely 
enabling statutes/ laws and their existence cannot be the basis to argue that the identified 
measure in itself is in force. In any event, the complainants' issue is not with these l egislative 
provisions that India has in place; rather the complainants allege that the amount of product -
specific domestic support provided by India is above the de minimis  level applicable to India 
under the AoA.  
(e) Purchase Tax Remission Schemes Andhra  Pradesh, Bihar, Maharashtra, 
Telangana, and Uttar Pradesh.  
69. The complainants have not questioned that the Purchase Tax Remission Schemes have been 
subsumed by the GST. The fact that these measures have been subsumed  by the GST is itself 
evidence of the se measures having lapsed.  
70. With respect to the Andhra Pradesh Purchase Tax Scheme, the only evidence that the 
complainants adduce is the State of Andhra Pradesh's Budget Estimates which reveal that no 
amounts were budgeted for this scheme in the Revis ed Estimate for 2017 -18 and for the 
Budget  Estimate 2018 -19. Therefore, the evidence adduced by the complainants confirms that 
the Andhra Pradesh Purchase Tax Scheme had expired at the time of the establishment of the 
Panel and that no payments were possib le thereafter.  
(ii) Measures that were enacted after the establishment of the Panel.  
(a)  The MAEQ Scheme does not fall within the scope of successor instruments 
or amendments to instruments, providing for export subsidies for 
sugarcane or sugar.  
71. The MAEQ scheme, does not amend any measure identified in the complainants' panel 
requests. Furthermore, it is also not a "successor" of any of the measures listed in the 
complainants' panel requests, as the complainants allege. Merely because the MAEQ has  
chronologically been enacted after certain measures as identified in the complainant's panel 
requests, the same does not ipso facto designate it as an "amendment" or "successor" thereof, 
particularly because it is not of the same essence as such other mea sures.  
(b) The MAEQ Scheme is not of the "same essence" as measures identified in 
the complainants' panel requests.  
72. The MAEQ Scheme is a separate and distinct measure from those identified by the 
complainants  in their requests for establishment of a p anel. The MAEQ Scheme is distinct from 
these measures on at the very least three accounts: (i) the nature of assistance provided; (ii) 
eligibility criteria for obtaining assistance; and (iii) the amount of assistance provided and the 
methodology to determi ne such amount.  
73. The Schemes for Assistance to Sugar Mills and the Buffer Stock Schemes provide assistance 
based on the amount of cane crushed and costs of maintaining buffer stocks, respectively. 
While the MAEQ Scheme has been introduced specifically with the view of providing WTO -
consistent payments to offset transport and marketing  costs incurred by sugar mills carrying 
out the export of sugar. Furthermore, eligibility requirements under all these schemes differ 
greatly. Lastly, the amount of assista nce provided and the methodology to determine such 
amount under the MAEQ Scheme varies greatly from those under the schemes identified by 
the complainants in their requests for establishment of a Panel.  
(c) Inclusion of the MAEQ Scheme within the Panel's terms of reference is not 
necessary to secure a positive solution to the dispute.  
74. India considers that the inclusion of the MAEQ Scheme within the Panel's terms of reference  
is neither necessary nor warranted for the purposes of securing a positive sol ution to the 
dispute. Assuming any of the measures alleged to constitute export subsidies in the present 
dispute are however found to be inconsistent with the covered agreements, measures taken 
thereafter that share some similar characteristics may be appr opriately addressed during the 
stage of compliance.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  C. EXECUTIVE SUMMARY OF INDIA's SUBMISSIONS ON NOMINATION/ APPOINTMENT 
OF THE CHAIRPERSON TO THE MPIA  
75. On 09 June 2020, the Chairperson of the Panel, Mr. Thomas Cottier issued a communication 
to the pa rties to the dispute citing the Code of Conduct on Rules and Procedures Governing 
the Settlement of Disputes, disclosing his nomination by Switzerland to serve as an arbitrator 
under the Multi Party Interim Appeal Arbitration Arrangement (" MPIA "). Mr. Cott ier invited 
the parties to raise any questions in the context of his participation in the MPIA arbitrator 
selection process and register their views, if any.  
76. As India is not a party to the MPIA, it sought to receive certain clarifications on the MPIA 
arbitrator selection process by its letter dated 18 June 2020. In the said communication, India 
also invited the complainants (who are parties to the MPIA) to offer responses to the questions. 
India did not receive a response from the complainants.  
77. On 28 August 2020, India once again requested clarifications from the complainants. Based 
on the responses provided by the complainants on 15 September 2020 and assurances 
provided by the chairperson through various letters, India communicated on 30 September 
2020 that it did not take issue with Mr. Cottier's function as chairperson of the Panel despite 
his nomination, participation in the selection process, and subsequent appointment as an MPIA 
arbitrator.  
D. EXECUTIVE SUMMARY OF INDIA's SUBMISSIONS ON THE CON DUCT OF A VIRTUAL 
MEETING  
78. On 02 October 2020, the Panel communicated to the parties that in light of the continuing 
health risks caused by the COVID -19 outbreak and the restrictive immigration measures taken 
by Switzerland and other countries in respon se thereto, it appeared unlikely to the Panel that 
it would be able to hold face -to-face meetings in the near future, with all the parties and the 
third parties physically present at the WTO premises. The Panel then proposed two options 
for conducting the first substantive meeting, i.e. either conducting two substantive meetings 
in a hybrid format (i.e. partially through video conferencing a) or a single substantive meeting 
in a possible hybrid format.  
79. India disagrees with the proposals of the Panel. W hile the DSU allows panels a certain margin 
of discretion, it does not permit panels to unilaterally alter fundamental aspects of the dispute 
settlement procedures, in the absence of the agreement of the parties to the dispute. A right 
to an oral hearing i n physical presence of the parties and the Panelists is a fundamental due 
process right which cannot be truncated by the Panel unless the parties to the present disputes 
agree.  
80. Further, India considers that the conduct of a hearing through video confe rencing does not 
effectively take into account the geographical and technological disparities and limitations of 
all the participants in the present disputes. The present disputes concern various measures 
that are implemented by several different States in  India necessitating the participation of, as 
well as coordination with, several State Government representatives and officials scattered 
across the country. In the event that video conferencing is adopted, the varied distribution of 
delegates across the c ountry, each with varied infrastructural, institutional and technological 
support, would not permit a uniform and meaningful level of engagement from all participants. 
These geographical and logistical difficulties would significantly impair India's abilit y, as a 
developing country respondent, to prepare and present its case. Further there is no way to 
guarantee the confidentiality of the proceedings in such a format.  
81. Accordingly, video conferencing can in no manner substitute a substantive meeting whic h 
requires physical presence of the parties and the Panelists. India emphasises that the objective 
of prompt settlement of disputes contained in article 3.3 of the DSU cannot be interpreted so 
as to compromise the due process rights guaranteed to all parti es, which in the present case 
would be irrevocably undermined if the opportunity for a physical substantive meeting in the 
presence of all parties is denied.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  E. EXECUTIVE SUMMARY OF INDIA's RESPONSES TO THE PANEL'S QUESTIONS PRIOR 
TO THE FIRST VIRTUAL MEET ING 
RESPONSE TO PANEL QUESTION 15  
82. Articles 3.2 and 6.3 of the AoA apply to Members that have undertaken commitments under 
Section I of Part IV of their Schedules. Article 7.2(b) of the AoA applies to Members that have 
no Total AMS commitments in Part I V of their Schedule. Therefore, where there exists no Total 
AMS commitment (i.e. a Member has not undertaken any commitment), Article 7.2(b) of the 
AoA would be the appropriate framework to determine such Member's compliance with 
domestic support obligatio ns. India submits that a finding under Article 3.2 and 6.3 of the AoA 
is not necessary in the event, the Panel concludes that India has acted inconsistently with 
Article 7.2(b) of the AoA.    
RESPONSE TO PANEL QUESTION 18 (a)  
83. The term "subsidy" under paragraph 1 of Annex 3 includes "market price support". This is 
evident from the phrase "each basic agricultural product receiving market price support, non -
exempt direct payments, or any other  subsidy not exempted from the reducti on commitment". 
The usage of the phrase "any other" before subsidy supports the view that market price 
support is also a subsidy.  
RESPONSE TO PANEL QUESTION 18 (c)  
84. The second sentence of paragraph 8 of Annex 3 to the AoA stipulates that any budgetary 
payment (other than the payment towards AAP) to maintain the gap between the AAP and 
FERP shall not be included in calculation of AMS. These budgetary payments may be towards 
costs of buying -in or storage. The second sentence does not elucidate when a mark et price 
support may be said to exist within the meaning of Annex 3 of the AoA.  
RESPONSE TO PANEL QUESTION 35  
85. Articles 9.1(d) and (e) of the AoA do not restrict a Member with respect to the manner in 
which any payments are made for the purposes as iden tified in these provisions. To the extent 
that the payments made are not in excess of the costs incurred, there is no requirement that 
the payments be equal to the costs incurred or be provided as a reimbursement.  
86. The complainants speculate that the a mount of the subsidy may not correspond to the actual 
expenses on transportation, freight and marketing without adducing any evidence to support 
their statement. If the complainants consider these payments to be in excess of the costs 
incurred, they should  have adduced relevant evidence. In absence of evidence, the statements 
by the complainants are mere speculation and conjecture.  
RESPONSE TO PANEL QUESTION 37  
87. To the extent that Article 9.1 (a) of the AoA may be argued to include revenue foregone as a 
direct subsidy, the same must also be necessarily informed by the scope of the term revenue 
foregone which excludes certain types of revenue foregone, namely remission of duties and 
taxes on exported products not in excess of those accrued from the scope o f the term subsidy. 
India therefore submits that to the extent that the Panel considers Article 9.1 (a) of the AoA 
to include revenue foregone, the same cannot include the remission of duties or taxes, which 
are not in excess of those levied or accrued.  
F. EXECUTIVE SUMMARY OF INDIA's RESPONSES TO THE PANEL'S QUESTIONS 
FOLLOWING THE FIRST VIRTUAL MEETING  
RESPONSE TO PANEL QUESTION 47  
88. In India's view, "buying -in" costs refer to costs associated with the procurement of the product 
concerned (other than th e AAP) incurred or paid by a government. These are not to be included 
in the AMS calculation.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  RESPONSE TO PANEL QUESTION 48 (a)  
89. The second sentence of paragraph 8 of Annex 3 has no bearing on India's arguments that a 
market price support only exists wh ere a government or its agent pays the AAP and procures 
the product. The second sentence of paragraph 8 only seeks to rightfully exclude certain 
payments made by a government towards costs associated with implementing an AAP, from 
the AMS calculation. The second sentence offers two examples of such costs i.e. costs 
associated with buying -in or storage.  
RESPONSE TO PANEL QUESTION 48 (b)  
90. Paragraph 8 in no way clarifies when a market price support can be said to exist within the 
meaning of Annex 3. In part icular, this also does not clarify who must pay the AAP. This issue 
is addressed under paragraph 2 read with paragraph 1 of Annex 3. India's arguments, in its 
prior submissions, are not concerned with the methodology provided in paragraph 8 of Annex 
3. The  issue of calculation of market price support and the methodology for such calculation 
will arise only after determining that a market price support exists. The complainants have 
not demonstrated the existence of a market price support in these disputes.  
RESPONSE TO PANEL QUESTION 48 (c)  
91. A Member's Schedule may not be relevant in defining "market price support". The issue that 
the Panel needs to address is whether a "market price support" can be said to exist if a 
government or its agents do not purcha se a concerned product from the agricultural producers 
and pay or promise to pay a price for the product. This issue is addressed under paragraph 2 
read with paragraph 1 of Annex 3 of the AoA.  
RESPONSE TO PANEL QUESTION 52  
92. While the definition of subs idy under the SCM Agreement may provide relevant context to 
construe the meaning of "export subsidies" under Article 9 read with Article 1(e), this does 
not mean that the definition of "subsidy" under the SCM Agreement is interchangeable with 
the usage of the term "subsidy" under the AoA in all contexts. The scope and purpose of both 
these agreements are different, and a governmental action that may qualify as a "subsidy" 
under the SCM Agreement may not necessarily always qualify as subsidy under the AoA. 
Further, measures that do not qualify as an "export subsidy" under the SCM Agreement cannot 
be qualified as an "export subsidy" under Article 9 of the AoA  
RESPONSE TO PANEL QUESTION 58  
93. The DFIA Scheme provides drawback of import charges (i.e. exemption from payment of basic 
customs duty) levied on imported input (i.e. raw sugar) that is used in production of exported 
products (i.e. white sugar). Such drawback is not in excess of the basic customs duty levied 
on imports of raw sugar, and accordingly, the DFIA Scheme does not constitute a subsidy 
under the SCM Agreement.   
94. The duty -free imported input, i.e. raw sugar, is physically incorporated in exported products, 
i.e. white sugar and falls under the scope of footnote 61 of Annex II and also footnote 1 of 
the SCM agreement.  
G. EXECUTIVE SUMMARY OF INDIA'S SECOND WRITTEN SUBMISSION  
I. Response to Claims on Domestic Support  
A. Response to the claims on domestic support  
(i) Market price support is a subsidy which does not include private expenditures.  
95. The complainants have failed to demonstrate that the alleged domestic support measures i.e. 
FRP and SAP measures constitute market price support under Annex 3 of the AoA. Contrary WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  to the complainants' assertions, the text, context as well  as object and purpose of the AoA do 
not support the complainants' views.  
96. Paragraph 1 of Annex 3 identifies two specific forms of domestic support (i.e. "market price 
support" and "non -exempt direct payments") which are then followed by a general phras e "or 
any other subsidy . . .".  The phrase "or any other subsidy" only means that in addition to the 
two subsidies expressly identified in paragraph 1, i.e. market price support and non -exempt 
direct payments, other subsidies not exempted from reduction c ommitments shall also be 
included in the AMS calculation.  
97. Since the phrases "market price support" and "non -exempt direct payments" under paragraph 
1 are followed by the phrase "or any other subsidy . . .", it clearly implies that "market price 
suppor t" or "non -exempt direct payments" are of the same kind or nature as  "any other 
subsidy . . ." Therefore, market price support is a subsidy under paragraph 1 of Annex 3.  
98. Paragraph 2 of Annex 3 delineates the scope of subsidy. Specifically, it does no t include 
measure involving private expenditures. Paragraph 2 identifies the givers of the subsidies. 
The phrase "by governments or their agents" limits the categories of givers to: (i) 
governments; or (ii) their agents. Therefore, any measure falling with in the scope of the term 
"include" can only be in the nature of governmental expenditure. Paragraph 2 of Annex 3 does 
not include private expenditures. Unlike the provisions of Article 9.1(c) of the AoA which 
pertains to payments financed by virtue of gove rnmental action, whether or not a charge on 
the public account is involved, paragraph 2 of Annex 3 limits subsidies that include both 
budgetary outlays and revenue foregone by governments or their agents. The usage of the 
phrases "by virtue of governmental  action" and "whether or not a charge on the public account 
is involved" in one of the provisions of the AoA, and the omission of such wide language in 
another provision clearly establishes that paragraph 2 of Annex 3 does not include private 
expenditures.  
99. Since FRP/ SAP measures do not involve government expenditures, they do not qualify as 
subsides and therefore, consequently they do not constitute market price support under Annex 
3 of the AoA.  
(ii) Response to the complainants' arguments on ordinary  meaning, context, object 
and purpose of the AoA, second sentence of paragraph 8 of Annex 3 and India's 
supporting tables.  
100. Contrary to the complainants' assertions, the text, context as well as object and purpose of 
the AoA do not support the complain ants' views. Article 6 alone is not determinative of what 
is disciplined under the AoA. Article 6 read with paragraph 1 and paragraph 2 of Annex 3 
identifies the scope of domestic support that goes into the calculation of AMS. Paragraph 2, 
which uses the p hrase "[s]ubsidies under paragraph 1", by its plain reading is linked to 
paragraph 1. Therefore, Brazil's ostensible "ordinary meaning" approach, without taking into 
account the significance of paragraph 2 of Annex 3, is incomplete and thus incorrect.  
101. Guatemala's interpretation of the term "include" ignores the import of the term "both" 
immediately following the term "include". Even if the term "include" were to be interpreted 
overlooking the term "both" (which will be erroneous), an unlisted type of s ubsidy must have 
a "commonality" with those specifically listed i.e. budgetary outlays and revenue foregone. 
Since budgetary outlays and revenue foregone relate to government expenditures or public 
accounts, any other measure falling within the scope of th e term "include" must also have the 
characteristics of governmental expenditure or expense from a public account.  
102. The second sentence of paragraph 8 of Annex 3 only seeks to exclude certain budgetary 
payments from the calculation of AMS and does not u ndermine India's views on paragraph 2 
of Annex 3. All that the second sentence of paragraph 8 seeks to do is exclude certain 
budgetary payments that are made to maintain the gap between the AAP and the FERP i.e. 
implement the market price support architect ure. The second sentence of paragraph 8 also 
provides certain illustrations of such budgetary payments such as costs towards "buying -in" 
or "storage". The second sentence of paragraph 8 rightfully excludes such payments made by 
a government towards the add itional costs from the calculation of the AMS. The exclusion of WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  such costs for "buying -in" or "storage" from the AMS calculation has no bearing on India's 
arguments that a market price support only exists where a government or its agent pays the 
AAP and pr ocures the product.  
103. A Member's Schedule is not relevant in defining "market price support". The question as to 
when a market price support can be said to exist within the meaning of Annex 3 must be 
determined in the light of the specific provisions of  the AoA. As India has stated above, market 
price support is a subsidy under paragraph 1 of Annex 3 and paragraph 2 of Annex 3 clearly 
sets out what subsidies under paragraph 1 comprise.  
B. Response to the claims on export subsidy under the AoA and the 
SCM Agreement  
(i) Article 3 of the SCM Agreement does not apply to India.  
104. India reiterates that Article 3 of the SCM Agreement is not applicable to it for the reasons 
stated in its First Written Submission. India emphasizes that the interpretation of Art icle 27 
developed by the panel in India – Export Related Measures  is not binding and has no legal 
effect on the present disputes. The panel report in India – Export Related Measures  has not 
been adopted, and is in fact, under appeal before the Appellate Bo dy. The specific issue of the 
panel's interpretation of Article 27 of the SCM Agreement is also under appeal. Therefore, 
reliance on this panel report is inconsequential.  
(ii) Actual transfers of funds are required for a subsidy to exist under the AoA and 
SCM Agreement.  
105. In context of the AoA, Article 9.1(a) refers to "subsidies" which requires both (i) a financial 
contribution and (ii) conferment of a benefit. Indeed, a "benefit" does not exist in the abstract 
but must be received and enjoyed by a bene ficiary or a recipient. Logically, a "benefit" can be 
said to arise only if a person, natural or legal, or a group of persons, has in fact received 
something. In the case of grants (which are what have been alleged to exist by the 
complainants in the prese nt disputes), an intended beneficiary or recipient could not have "in 
fact received the grants" unless the grants are actually transferred to such intended 
beneficiary or recipient. Since benefit cannot exist in abstract and a beneficiary must receive 
some thing (i.e., grants), a subsidy (receipt of a benefit being an integral part of a subsidy) 
cannot exist unless there is an actual transfer of funds.  
106. Turning to the SCM Agreement, the complainants do not engage with the text of the provisions 
of Articl e 1.1(a)(1) i.e. "there is a financial contribution . . ." and thus fail to respond to India's 
arguments set out in its First Written Submission.  
107. Instead, the complainants' sole argument is based on the phrase "potential direct transfer of 
funds" unde r Article 1.1(a)(1)(i) of the SCM Agreement and the observations in a few panel 
and Appellate Body reports.  
108. The complainants' attempt to equate "potential transfer of direct funds" under Article 1 of the 
SCM Agreement with "direct transfer funds" is w holly misplaced. They conflate two distinct 
concepts. Article 1.1(a)(1)(i) of the SCM Agreement identifies two forms of governmental 
practice: (i) one that involves direct transfer of funds (e.g. grants, loans, and equity infusion); 
and (ii) the other that  involves potential direct transfer of funds (e.g. loan guarantees). The 
two are not the same. The second category, by the plain text of the provision, is a financial 
contribution in itself. For example, if a government guarantees a loan, this in itself is  a financial 
contribution. The creditor need not default, and the guarantor need not fulfil the obligations 
of the guarantee by paying off the loan to qualify as a "financial contribution". 
Article  1.1(a)(1)(i) identifies the act of guaranteeing (which may  involve a transfer of funds 
in the future and hence, potential direct transfer of funds) as a financial contribution. This is 
different from the cases involving "direct transfer of funds".  
109. Indeed, there cannot be a "transfer" unless the funds are ac tually transferred to the recipient. 
The term "transfer" means "move, take or convey from one place, person, situation, time of 
occurrence etc., to another"; "transmit"; "give or hand over from one to another"; "convey or 
make over (title, right, or proper ty) by deed or legal process".  Meanings that are relevant in WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  the context of Article 1.1(a)(1)(i) are "convey from one person to another", "transmit", or 
"give or hand over from one to another". Therefore, "a direct transfer of funds", by the 
ordinary mean ing of the term "transfer" requires transmission of funds or giving or handing 
over of funds from a giver to a recipient.    
110. None of the complainants have alleged that India's alleged export subsidy measures constitute 
a "potential direct transfer of funds", rather the complainants argue that the challenged 
measures are a "direct transfer of funds" in the form of grants. In fact, Guatemala even goes 
as far as to state that a "grant" is understood as a transaction in which "money or money's 
worth is given to a recipient…", thereby implying that a transfer is in fact, effectuated.  
111. Therefore, to the extent that evidence has not been placed before this Panel with respect to 
actual disbursement of funds with respect to a challenged measure, it can be concluded that 
the complainants have failed to prove that there is a financial contribution with respect to that 
measure.  
(iii) The complainants have not demonstrated that the challenged measures grant a 
benefit to sugar mills.  
 
112. The complainants have failed to demonstrate the second element of existence of a subsidy 
i.e., that a benefit is conferred. The complainants, on one hand, claim that India's sugar and 
sugarcane market is heavily distorted; and, on the other, also argue tha t a benefit is 
automatically conferred on the sugar mills in the very same market which they claim to be 
distorted. Both these claims cannot be true at the same time. The complainants' claim that 
India's sugar and sugarcane market is heavily distorted requ ires them to identify an 
undistorted market separate from the market in which the transaction between the 
government and sugar mills is executed. It also requires that they then demonstrate that the 
sugar mills in the allegedly distorted market are better -off or receive a competitive advantage 
compared to what they would have received had the transaction between the government and 
the sugar mills occurred in such undistorted market. The complainants have not done so.  
113. The complainants' arguments also i gnore the cost of availing such alleged financial 
contribution. The complainants claim that the prices of sugarcane (i.e., raw material for sugar) 
is exorbitantly high in India. By their own claim, it is evident that the cost of production of 
sugar for the  sugar mills is very high making them uncompetitive in the export market. The 
sugar mills undertake "loss -making transactions" in the export market to receive the alleged 
financial contribution from the government. In such a case, a benefit cannot be autom atically 
deduced as claimed by the complainants without taking into account the cost to the sugar 
mills. Therefore, the complainants have failed to demonstrate the existence of a benefit.  
(iv) The DFIA scheme does not constitute a subsidy under the AoA an d the 
SCM Agreement.  
114. India does not agree with Australia's conclusion which is based on an incorrect understanding 
of the requirements of footnote 1 read with Annex 1 (i) of the SCM Agreement. While the DFIA 
Scheme may provide remission of import char ges on a post -export basis, such remission is 
nevertheless provided commensurate to inputs already consumed in exported products. In 
other words, an exporter is only entitled to claim an exemption on import duty for future 
imports of raw sugar to the exten t of the raw sugar that was in fact consumed in the production 
of exported white sugar. Further, there exists a verification mechanism to ensure that only 
the specific inputs actually consumed in the export product are allowed duty free import under 
DFIA.  Thus, the DFIA scheme provides a remission of import charges already paid in respect 
of inputs consumed in the production of exported products in the form of duty -free import of 
future raw sugar. Nothing in the text of footnote 1 or paragraph (i) of Annex  1 of the SCM 
Agreement requires that remissions on import duty cannot be granted on a post -export basis.  
H. EXECUTIVE SUMMARY OF THE OPENING STATEMENT IN THE SECOND VIRTUAL 
MEETING  
115. For the most part, the complainants raise common flawed arguments in their second written 
submissions except for a few variances and some limited new, but equally flawed arguments . WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  116. The so -called negotiating history documents relied by the complainants make an upfront 
disclosure: (i) these documents  were prepared by the  Chairman pursuant to his own 
responsibility; (ii) the documents are not exhaustive; and (iii) they are without prejudice to 
participants' positions on these or other issues which may also need to be considered further. 
These disclosures are revealing of t he relevance that the Panel may accord to the cited 
negotiating history documents relied upon by the complainants.  
117. In any event, the cited negotiating history documents neither support the complainants' views 
on paragraphs 1 and 2 of Annex 3, nor do t hey dislodge India's reading of these paragraphs. 
Paragraphs 5 and 6 of the Chairman's Note are analogous to paragraphs 10 and 13 of Annex 
3 respectively and not to paragraph 2 of Annex 3. Indeed, under paragraph 10 and 13, under 
certain circumstances one may use budgetary outlays (which includes revenue foregone) to 
measure/ calculate the subsidy in question. Paragraphs 5 and 6 of the Chairman's Note do not 
say anything more in this respect. India has not disputed this. Paragraphs 5 and 6 of the 
Chairman's  Note do not state that paragraph 2 of Annex 3 does not apply to market price 
support or that market price support is not a subsidy under paragraph 1.  
118. Brazil's reading of the phrase "[S]ubject to the provisions of Article 6" in paragraph 1 of Annex 
3 is flawed. The phrase "[S]ubject to the provisions of Article 6" only means that the AMS 
calculation must exclude those items expressly exempted under Article 6. It does not mean 
that there are no other implied or express exclusions in Annex 3. Nor does it  diminish the 
plain meaning of paragraph 1 which excludes measures that are not subsidies within the 
meaning of paragraph 2 of Annex 3.  
119. Brazil selectively places emphasis on the word "any" and again commits the same error of 
reading provisions in an isolated fashion. Article 7.2(a) cannot be read in a manner to ignore 
the clear and unambiguous text of paragraphs 1 and 2 of Annex 3. Indeed, Article 7.2(a) itself 
also recognises that measures may be exempt from reduction commitments by reason of any 
other provision of the AoA. Paragraphs 1 and 2 of Annex 3 are provisions of the AoA which do 
not include the FRP and SAP measures that involve private expenditures.  
120. With respect to the claims on MAEQ Scheme, the complainants have not discharged their 
burden of proof of demonstrating the affirmative of their claims.  
121. The complainants'  claims with respect to MAEQ Scheme is based on Article 3.3 read with 
Article 9.1 of the AoA. Article 3.3 of the AoA reads as follows:  
"Subject to the provisions of parag raphs 2(b) and 4 of Article 9 , a Member shall 
not provide export subsidies listed in paragraph 1 of Article 9 in respect of the 
agricultural products or groups of products specified in Section II of Part IV of 
its Schedule in excess of the budgetary outlay  and quantity commitment levels 
specified therein and shall not provide such subsidies in respect of any 
agricultural product not specified in that Section of its Schedule." (Emphasis 
supplied)  
122. Article 3.3 expressly cross -refers to Article 9.4 of the AoA. Article 9.4 allows developing 
country Members to adopt measures that, subject to certain conditions, may be inconsistent 
with Article 3.3 read with Article 9.1 of the AoA during a transition phase i.e., the 
implementation period. This is similar to th e relationship between Articles 2.2 and 5.7 of the 
SPS Agreement that the Appellate Body examined. Article 9.4 is also a special and differential 
treatment provision designed to address particular needs and conditions of developing country 
Members in line with the objectives of the AoA. Article 9.4 is critical to enable the developing 
country Members to have an equitable share in the benefits of trade liberalisation, 
development and economic growth. Article 9.4 is, therefore, an autonomous right, and not a 
typical "exception" or "defense" such as Article XX of the GATT 1994.4 Contrary to what the 
complainants seem to argue, India has not invoked a defense  or exception.  
123. Therefore, the complainants bore the burden to demonstrate that the MAEQ Scheme is 
inconsistent with Article 9.4. They did not do so in their first written submission. Paragraph 
 
4 Appellate Body Report, EC - Hormones , para. 104.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  3(1) of the Working Procedures required the parties to submit their first written submission 
containing facts of the case and their arguments before the first su bstantive meeting. Indeed, 
Paragraph 3(1) of the Working Procedures required the complainants to set out its case in 
chief, including a full presentation of the facts on the basis of submission of supporting 
evidence, during the first stage. Guatemala did not make any mention of Article 9.4 in its first 
written submission. Australia made a cryptic statement that its "claims in this dispute do not 
concern export subsidies of these [Article 9.4] kinds". Brazil simply stated that it "does not 
consider that the  exemptions provided by Article 9.4 are relevant in this dispute". The cryptic 
statements by Australia and Brazil fell far below the standard of elaboration  containing an 
explicit articulation5 of its claims that MAEQ Scheme did not fulfil conditions of A rticle 9.4. In 
fact, they found it simply not relevant. This failure is critical  in view of the due process 
considerations  as observed by the Appellate Body.6 Given the complainants have failed to 
discharge their burden, the burden of proof did not shift to India. India, therefore, does not 
bear any burden to demonstrate that the MAEQ is covered under Article 9.4 read with Articles 
9.1(d) and 9.1(e) of the AoA.  
124. The complainants, in their second written submission, have made delayed claims on the MAEQ 
Scheme not complying with the requirements of Article 9.1(d) and 9.1(e). This does not rectify 
the critical flaw of demonstrating prima facie  case in the first insta nce i.e., the first written 
submissions and undermines due process rights of India.  
I. EXECUTIVE SUMMARY OF INDIA'S CLOSING STATEMENT IN THE SECOND VIRTUAL 
MEETING  
125. India notes that the complainants' positions are fraught with inconsistencies. At time s, they 
chose to emphasize on the absence of a word, at other occasions they find such omission 
irrelevant; at one point they find so -called negotiating history document relevant (India has 
demonstrated that those documents say nothing more than what we kn ow from Annex 3), in 
some other context, they ignore it as a "labyrinthine" process; at one point they find paragraph 
2 of Annex 3 as a "calculation methodology" that applies only to paragraph 13, at another 
point they find that paragraph 2 applies to both  paragraphs 10 and 13; at one point they find 
non-exempt direct payment may be subsidies but does not follow that it must be subsidies, 
at another point they discover the syntax of paragraph 1 of Annex 3 and find non -exempt 
direct payment as a subsidy.  
126. This is a classic Hobbesian "self -interest" at display here. In other words, rules ( read treaty 
text) do not matter, what matters is what the complainants want. If a position suits the 
complainants, they must take such a position, no matter how inconsis tently that is taken, and 
no matter what is written in the rules. How did the complainants get caught in this position? 
It is because the complainants first made an a priori  conclusion that the FRP/ SAP measures 
are equal to AAP and they then started findi ng support from the treaty text. A treaty 
interpreter does not interpret the treaty to reach a predetermined conclusion. It is for this 
error that the complainants have struggled to go to every nook and corner of the AoA, and 
yet failed to find support for  their arguments.  
127. If the Panel were to agree with India's arguments, the Panel will only report what the text of 
the AoA unambiguously states. The complainants have, on the other hand, urged the Panel to 
ignore the text and rather consider systemic co ncerns. For complainants, India's 
interpretations must be rejected (despite the clear textual provisions) and rather the treaty 
must be read what ought to be the reading or else there will be a "loophole". India will address 
if there is any loophole.  
128. But first, the complainants are encouraging the Panel to engage in "normativism" and India is 
deeply concerned with that, as this will set the Panel on a dangerous path. WTO panels do not 
and must not supply or omit words from a treaty. If that is allowed , it will lead to a slippery 
slope where the panels will usurp the powers of the Ministerial Conference and the General 
Council who have exclusive authority to adopt interpretations of the covered agreements or 
negotiate and arrive at new rules on subject matters that are not currently addressed under 
the covered agreements. Indeed, there are no agreed conceptions of what "policy 
 
5 Appellate Body Report, EC – Tariff Preferences , para. 113.  
6 Appellate Body Report, EC – Tariff Preferences , para 113.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  considerations" or "systemic concerns" constitute among the WTO Membership. Invocation of 
such undefined, unagreed and vague conc epts into treat interpretation will defeat the very 
objective of a treaty - which is to achieve certainty based on the consent of the sovereign 
parties to such a treaty. It will lead to "legislation" or revisions in the treaty text by entities 
who simply d o not have such authority.  
129. Further, what Australia refers to as a "loophole", India finds it as a delicate balancing exercise. 
If a few wealthier countries can enjoy implementing blue box subsidies which are product -
specific and not decoupled with pro duction, equally, it is only fair that countries at a lower 
stage of economic development have some level of flexibility within their policy space to 
address their particular needs. It is this balance which the AoA has sought to achieve by 
excluding measur es such as the FRP/ SAP measure from the scope of AMS calculation.  
J. EXECUTIVE SUMMARY OF INDIA's RESPONSES TO THE PANEL'S QUESTIONS 
FOLLOWING THE SECOND VIRTUAL MEETING  
RESPONSE TO PANEL QUESTION 61  
130. While the SCM Agreement provides relevant context for interpreting the existence of a subsidy 
under the AoA, this does not mean that the definition of a subsidy under the SCM Agreement 
is interchangeable with the usage of the term subsidy under the AoA in all contexts.  
131. In the present disputes, the is sue at hand is when a measure may qualify as "market price 
support" within the meaning of Annex 3 of the AoA. The phrase "income or price support" 
appearing in Article XVI of the GATT 1994 and Article 1.1(a)(2) of the SCM Agreement has 
not been defined the rein. These agreements do not offer any guidance on when income or 
price support may be said to exist. Nor do these agreements provide any calculation 
methodology or identify the ingredients of measuring "income or price support". Therefore, 
the phrase "in come or price support" appearing in Article XVI of the GATT 1994 and Article 
1.1.(a)(2) of the SCM Agreement is not relevant in addressing the issue of when a market 
price support can be said to exist within the meaning of Annex 3 of the AoA.  
132. Annex 3 of the AoA unambiguously sets out the scope of a measure that may be classified as 
market price support i.e. in paragraphs 1 and 2 of Annex 3. Hence these are relevant for 
addressing the issue of when a measure may be classified as a market price support u nder 
Annex 3 of the AoA.  
133. Without prejudice, India notes that in any case the phrase "income or price support" in 
Article  1.1(a)(2) of the SCM Agreement or in Article XVI of GATT 1994 does not include 
measures that do not involve government expenditure .7  
RESPONSE TO PANEL QUESTION 63 (b)  
134. India reiterates that India's Schedule is neither relevant in interpreting what constitutes 
market price support under the AoA, nor does it define what is market price support. Indeed, 
the Appellate Body in Chile — Price Band System8  noted that the Schedule of one Member, 
and even the scheduling practice of a number of Members, is not relevant in interpreting the 
meaning of a treaty provision. Therefore, India does not consider that the above question is 
relevan t for the Panel to resolve the present disputes  
RESPONSE TO PANEL QUESTION 81  
135. India notes that the question of whether there is excess payment is now moot as the 
complainants, to begin with, have not discharged their burden with respect to the MAEQ 
Scheme in their first written submissions.  
 
7 L/1160, adopted on 24 May 1960, 9S/188, 191, para. 11 (noting that "[I]n such a case there would be no loss 
to the government, and the measure would not be governed by Article XVI. . .").  
8 Appel late Body Report, Chile — Price Band System , para. 272.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  136. Guatemala's arguments on the textual differences between Article 3.3 of the AoA and 
Article  2.2 of the SPS Agreement are inconsequential. In fact, the panel's observations in EC 
- Approval and Marketing of Biotech Products  (US) despite the usage of the phrase " except  as 
provided in paragraph 7 of Article 5", the panel did not find Article 5.7 of the SPS Agreement 
as an "exception" or "defense".9 
137. India also does not accept that the complainants have discharged their burden of proof as 
Brazil seeks to argue India's choice to offer its comments on merits of the MAEQ Scheme does 
not automatically shift the burden which the complainants did not discharge to begin with.  
RESPONSE TO PANEL QUESTION 86 (a) & (b)  
138. The DFIA can be transferred from one entity to another. The transferability of the DFIA has 
no relevance to the Panel's analysis under footnote 1 read with Annex I of the SCM Agreement. 
India reiterates that the DFIA allows for a  remission on import charges that is equivalent to 
what has already been paid on inputs which have in fact, been consumed in the process of 
production of exported products. This falls squarely within the requirements of footnote 1 of 
the SCM  Agreement.  
RESPONSE TO PANEL QUESTION 88  
139. India's Foreign Trade Policy read with the Handbook of Procedures addresses the issue of any 
excess remission.   
140. Specifically, an applicant seeking to avail of the DFIA is required to make an application in a 
prescribed  form i.e. Form ANF -4G, including details of the items exported, details of items 
sought to be imported, details of other materials to be used in the export product and sought 
to be imported etc.  
141. Further, paragraph 4.56 of the Foreign Trade Policy Ha ndbook of Procedures requires the 
original DFIA holder to maintain a true and proper account of consumption and utilisation of 
duty free imported/domestically procured goods against each authorisation as prescribed in 
Appendix 4H which are sent to the Regi onal Authority concerned along with a request for bond 
waiver/redemption/discharge of export obligation/transferability to be vetted along with 
verification by a practicing accountant (as licensed by the relevant regulatory body).  
142. Thereafter, accordin g to para 4.53 read together with 4.49(f), the Regional Authority 
compares the relevant portion of Appendix 4H with that of norms allowed in Authorisation(s) 
and actual quantity consumed /utilised imported against Authorisation(s) in the beginning of 
licensing year for all such Authorisations redeemed in the preceding licensing year. In this 
verification process, in case it is found that the Authorisation holder has consumed a lesser 
quantity of inputs than imported, the Authorisation holder shall be liable  to pay customs duty 
on the unutilized value of imported material, along with interest thereon as notified, or affect 
additional export within the export obligation period.  
143. Therefore, the DFIA Scheme does not allow any excess remission. An exporter is  only entitled 
to claim an exemption on import duty for future imports of raw sugar to the extent of the raw 
sugar that was in fact consumed in the production of exported white sugar.  
_______________  
 
 
9 Panel Report, EC – Approval and Marketing of Biotech Products (US) , para. 7.2966.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/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 Canada  104 
Annex  C-2 Integrated executive summary of the arguments of China  108 
Annex  C-3 Integrated executive summary of the arguments of Costa Rica  110 
Annex  C-4 Integrated executive summary of the arguments of El Salvador  113 
Annex  C-5 Integrated executive summary of the arguments of the European Union  116 
Annex  C-6 Integrated executive summary of the arguments of Japan  119 
Annex  C-7 Integrated executive summary of the arguments of the United States  122 
 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA  
 
I. PARAGRAPH 2 OF ANNEX 3 OF THE AOA DOES NOT REQUIRE THE ADMINISTERED 
PRICE TO BE PAID BY A GOVERNMENT OR ITS AGENT FOR SUPPORT TO BE 
CONSIDERED "MARKET PRICE SUPPORT"  
1. First, Canada addresses Ind ia's reliance on paragraph 2 of Annex 3 of the AoA to support its 
argument that the Fair and Remunerative Price and State Advised Price measures are not "market 
price support" because they are not paid by a government or its agents.1 In Canada's view, Ind ia's 
reliance on paragraph 2 of Annex 3 to support this position is misplaced.  
2. Paragraph 1 of Annex 3 of the AoA identifies three types of domestic support that must be 
included in a product -specific AMS: "market price support", "non -exempt direct payme nts" and "any 
other subsidy not exempted from the reduction commitments". Paragraphs 2 through 13 of Annex  3 
provide guidance on how to calculate support in each of these categories.  
3. Canada shares India's view that market price support is a form of subs idy.2 Thus, the guidance 
provided by paragraph 2 of Annex 3 is applicable to market price support.  
4. However, paragraph 2 of Annex 3 does not limit the types of support considered "subsidies" 
to budgetary outlays and revenue foregone by governments or th eir agents. The use of the term 
"include" in paragraph 2 indicates that "budgetary outlays" and "revenue foregone" by governments 
or their agents are examples of the types of support that would be considered "subsidies" under 
paragraph 1, rather than an ex haustive list.  
5. Thus, paragraph 2 does not provide a basis to conclude that the administered price must be 
paid by a government or its agent for support to be considered "market price support" as India 
argues.  
II. RELATIONSHIP BETWEEN THE SCM AGREEMENT AND THE AOA  
6. Second, Canada addresses the issue of the order of analysis of export subsidy claims brought 
under both the SCM Agreement and the AoA, and the role of the text and jurisprudence arising out 
of the SCM Agreement in interpreting obli gations found in the AoA.  
7. With respect to the order of analysis, Canada considers that the Panel's analysis must start 
with the obligations found in the AoA before considering those in the SCM Agreement for measures 
that are covered by both Agreements.  
8. Article 21.1 of the AoA establishes that the obligations in the AoA supersede the obligations 
found in other WTO multilateral trade agreements, including the SCM Agreement. It provides: "The 
provisions of GATT 1994 and of other Multilateral Trade Agree ments in Annex 1A to the 
WTO Agreement shall apply subject to the provisions of this Agreement". This hierarchy rule is also 
reflected in Article 3.1 of the SCM Agreement, which prohibits import substitution subsidies and 
export subsidies "[e]xcept as prov ided in the Agreement on Agriculture". Appellate Body 
jurisprudence also recognizes the primacy of the AoA when examining the WTO -consistency of an 
export subsidy for agricultural products.3  
9. As a result, the Panel must first analyze claims of export s ubsidization for agricultural products 
under the AoA, and then under the SCM Agreement if necessary.  
 
1 India's first written submission, paras. 61 -63. 
2 See India's response to Panel question No. 18, p. 13.  
3 Appellat e Body Report s, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 123; US – Upland 
Cotton , paras. 570.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  10. With respect to the role of the SCM Agreement in interpreting obligations found in the AoA, 
Canada considers that, in addition to the context provided by other provisions of the AoA, the 
SCM Agreement may provide relevant context to interpreting these obligations. In particular, 
Article  1 of the SCM Agreement may provide relevant context for interpreting the term "subsidy" in 
the AoA.4 However, the use of Article 1 of the SCM Agreement as context must not result in a conflict 
between the provision being interpreted and other provisions of the AoA.  
III. EXPORT SUBSIDIES DISCIPLINES UNDER ARTICLE 3.1(A) OF THE SCM AGREEMENT 
NOW APPLY TO INDIA  
11. Third, C anada addresses India's claim that export subsidy disciplines under Article 3.1(a) of 
the SCM Agreement do not apply to it.  
12. In its first written submission, India argues that it is not subject to export subsidy disciplines 
because it is still covered by the eight -year period of Article 27.2 of the SCM Agreement.5 India's 
view is that the eight -year period started on the date of its graduation from Annex VII(b).6  
13. Canada disagrees with India's interpretation.7 The ordinary meaning of Article 27.2(b) of the 
SCM Agreement is clear: the eight -year exemption peri od began on the date of entry into force of 
the WTO Agreements, that is, on 1 January 1995, and ended eight years later, on 1 January 2003.  
14. Pursuant to Annex VII and Article 27.2, if a developing Member graduated from Annex VII 
before 1 January 2003, it would have become subject, upon graduation, to the special and 
differential treatment of non -Annex VII developing Members; as set out in Article 27.2(b), it would 
have had until 1 January 2003 to phase out export subsidies. However, because India gradua ted 
from Annex VII after the expiry of the eight -year period, this phase -out mechanism is no longer 
applicable. As a result, India became subject to disciplines on export subsidies under Article 3.1(a) 
of the SCM Agreement upon its graduation from Annex VI I in 2017.  
IV. THE RESPONDENT HAS THE BURDEN TO PROVE THAT ITS MEASURES MEET 
REQUIREMENTS TO BE EXEMPTED FROM THE CURRENT TOTAL AMS  
15. Fourth, Canada addresses the question of whether it is the complainant or the respondent 
who bears the burden to demon strate that a measure should be excluded from a Member's current 
total AMS.  
16. In response to question 26(b) from the Panel, Brazil and Australia submit that the respondent 
bears the burden to prove that certain measures should be excluded from the respo ndent's current 
total AMS.8 To the contrary, India claims that since the complainants have made an affirmative claim 
of market price support, they bear the burden to prove each element thereof, including exclusions.9  
17. In Canada's view, where the comp lainant claims that the domestic support of the respondent 
exceeds its permissible level of support under the AoA, it is up to the respondent to raise any 
exemption and to demonstrate that the measures meet the applicable criteria for that exemption.  
18. This interpretation is consistent with general Appellate Body guidance on the burden of proof 
in WTO dispute settlement proceedings. The Appellate Body has held that t he burden of proof rests 
upon the party, whether the complainant or the respondent, who a sserts the affirmative of a 
particular claim or defense.10 
 
4 See Panel Report, US – FSC, para. 7.150; Appellate Body Report, Canada – Dairy , para. 87.  
5 India's first written submission, paras. 132 and 14 5. 
6 Ibid. para. 133.  
7 See Canada's third -party submission, paras. 26 -38. 
8 Brazil's response to Panel question No. 26, para. 41; Australia's response to Panel question No. 26, 
paras. 65 and 68.  
9 India's response to Panel question No. 26, p. 18.  
10 Appellate Body Reports, US – Wool Shirts and Blouses , p. 14; US – Tuna II (Mexico) , para. 216; see 
also Panel Reports,  EU – Footwear (China) , para. 7.10; China – Electronic  Payment Services , para. 7.5; China 
– Broiler Products , para. 7.6; US – Carbon Steel  (India) , para. 7.7; US – Countervailing Measures (China) , 
para. 7.11; and Peru – Agricultural Products , para. 7.13.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  19. If the respondent considers that certain measures targeted by the complainant should be 
exempted from its current total AMS, the respondent bears the burden to demonstrate that the 
measures at  issue meet the exemption criteria. The respondent bears this burden when it claims an 
exemption arising in Annex 2 of the AoA or when it claims that the measure is a budgetary payment 
made to maintain the price gap within the meaning of paragraph 8 of Ann ex 3. 
20. Requiring the complainant to prove that certain exemptions do not apply, as proposed by 
India, would be tantamount to requiring the complainant to demonstrate the negative  of a claim. 
This is inconsistent with applicable jurisprudence.  
V. NOTIFICATION REQUIREMENTS  
21. Finally, Canada considers that the notification requirements contained in the WTO Agreements 
are important to ensuring transparency11 and the effective monitoring of the implementation of a 
WTO Member's commitments. Notificat ions submitted by WTO Members to the relevant 
WTO committees support and underpin the proper operation of these committees. Therefore, 
WTO Members must, in good faith, notify their measures in accordance with their WTO obligations.   
22. With respect to the  content of these obligations under the AoA, Canada considers 
that: (1) Article 18 of the AoA imposes a mandatory obligation on WTO Members to notify their 
measures; and (2) Members must in good faith notify all domestic support in favour of agricultural 
producers, including market price support, under Article 18 of the AoA.  
A. Article 18 of the AoA imposes a mandatory obligation on WTO Members to 
notify their measures  
23. Although Article 18 is not explicit in setting out a mandatory obligation on WTO Mem bers to 
notify their measures, a careful reading of its provisions nonetheless establishes that a mandatory 
obligation to notify exists.  
24. First, Articles 18.1 and 18.2 require the Committee on Agriculture to review Members' progress 
in the implementatio n of their commitments in part on the basis of Members' notifications. If 
Members were not required to submit notifications, there would be little basis on which to conduct 
this review and therefore little ability for the Committee on Agriculture to meet i ts obligation under 
Article 18.1.  
25. Further , Article 18.3 provides that "[i]n addition to the notifications to be submitted  under 
paragraph  2, any new domestic support measure, or modification of an existing measure, for which 
exemption from reduction is claimed shall be notified promptly".12 Use of the phrase "to be 
submitted" suggests that notifications under paragraph 2 ar e mandatory. Moreover, use of the term 
"shall" clearly indicates that Members have a mandatory obligation to notify new or modified 
measures for which they are claiming an exemption from reduction commitments. It stands to reason 
that if Members have a man datory obligation to notify these new or modified measures, they would 
also have a mandatory obligation to notify measures that are subject to reduction commitments.  
26. Finally, if the notification of a Member's measures was not mandatory, there would be no basis 
for another Member to consider that those measures "ought to have been notified" in Article 18.7. 
Interpreting Article 18 as only recommending that Members notify their measures under the AoA 
would render Article 18.7 inutile.  
B. Notifications und er Article 18 of the AoA must include "all domestic support 
in favour of agricultural producers", including market price support  
27. Canada considers that, under Article 18 of the AoA, Members must in good faith notify "all 
domestic support in favour of ag ricultural producers", including market price support. This obligation 
is established through a careful reading of the provisions of the AoA.  
 
11 See Appellate Body Report, Brazil – Aircraft , para. 149.  
12 AoA, Article 18.3. (emphasis added)  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  28. Under Articles 3.1 and 3.2 of the AoA, Members commit not to provide domestic support or 
export subsidies in excess of the levels specified in their Schedules. Members' commitments 
concerning domestic support apply to "all its domestic support measures in favour of agricultural 
producers" except those exempt from reduction commitments.13 "Domestic support measures in 
favour of agricultural producers" include modifications to existing measures as well as new measures 
that are not exempt from reduction commitments.14 As all non -exempt domestic support measures 
in favour of agricultural pro ducers form part of a Member's commitments under the AoA, a Member 
must notify these measures under Article 18.  
29. Annex 3, paragraph 1 specifies that market price support is a type of non -exempt domestic 
support.15 Market price support must therefore al so be included in a Member's notifications under 
Article 18.  
30. Only when Members submit timely and high quality notifications concerning all non -exempt 
domestic support in favour of agricultural producers, including market price support, can the 
Committe e on Agriculture properly review whether there has been progress on the implementation 
of commitments negotiated under the Uruguay Round reform programme.  
 
 
13 AoA, Article 6.1.  
14 Ibid. Article 7.2(a).  
15 Ibid. Annex 3, para. 1.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA* 
 
I. INTRODUCTION  
1. China thanks the Panel for this opportunity  to present its views on the proper legal 
interpretation of certain key provisions of the Agreement on Agriculture in relation to the applied 
administered price  and the constitution of market price support . In particular, China would like to 
offer some cla rification on the findings of the Panel in China –Agricultural Producers  cited by the 
parties.   
II. CLAIMS REGARDING APPLIED ADMINISTERED PRICE AND CONSTITUTION OF 
MARKET PRICE SUPPORT  
2. In their submissions, Australia, Brazil and Guatemala complained tha t India maintains a 
variety of market price support and other product -specific support measures for sugarcane farmers, 
and that the sum total of such domestic support exceeds the de minimis  level as applicable to India 
under the Agreement on Agriculture. I n particular, they argued that India has provided excessive 
market price support through its Fair and Remunerative Price ("FRP") and State Advised Price 
("SAP") programs, and the prices set by Indian government under those programs  are applied 
administered  prices  for the purposes of the Agreement on Agriculture.  
3. India argued , however, that the measures  at issue do not quali fy as market price support 
measures  and should not be included in its AMS calculation. Specifically, India argued that in light 
of paragraph 2 of Annex 3 of the Agreement on Agriculture, a market price support could be by a 
government or its agent, only if the government or its agent pays t he administered price and 
procures the specified product at such administered price.1 Since the sugar mills that purchase 
sugarcane from the farmers at FRP and SAP are neither government nor its agents, those programs 
do not qualify as a subsidy by the go vernment or its agents under Annex 3  and consequently as a 
market price support .2  
4. China does not hold any position on either the facts of th ese disputes or whether India 's 
measures constitute market price support. However, China has concerns on the mi sleading summary  
by India of the fact and legal finding of  China – Agricultural Producers .  
5. In paragraph  69 of its first written submission, India seems to suggest that the interpretation 
of the phrase "applied administered price" by the Panel in China – Agricultural Producers  was 
somehow informed by, or conditioned on, the alleged context of that case, i.e. source of finance for 
purchase and ownership of the purchased products. However , in that dispute, the parties have never 
argued and the Panel has ne ver mentioned the source of finance or ownership of purchased products 
in interpreting the term "applied administered price". To the contrary, the Panel 
in China  – Agricultural Producers  adopted the ordinary meaning approach presented by both parties, 
and found that the "applied administered price" is the price set by the government at which specified 
entities will purchase certain basic agricultural products.3  
6. That being said, we agree that in China – Agricultural Producers , the Panel's finding on the 
connection between "applied administered price" and "market price support" is limited. It basically 
found that applied administered price is a constituent element of a market price support measure,4 
and the removal of the applied administered price me ans the expiration of the market price support 
measure .5 However, that panel did not address the question of what would constitute as "market 
 
* China requested that its oral statement serves as its executive summary.  
1 India’s First Written Submission, para. 62.  
2 India’s First Written Submission, paras. 63-64. 
3 Panel Report, China –Agricultural  Producers,  para. 7.177.  
4 Id., para. 7.173.  
5 Id., para. 7.80. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  price support" or whether the applied administered price  is the sole prerequisite to a market price 
support measu re. These are key questions this Panel may need to address.  
III. CONCLUSION  
7. China thanks  the Panel for its attention and looks forward to answering any questions the 
Panel may have.  
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARG UMENTS OF C OSTA RICA  
 
I. CHARACTERIZATION OF THE FRP/SAP AS DOMESTIC SUPPORT MEASURES UNDER 
THE AOA  
1. The complainants have argued that India maintains a variety of measures at the federal and 
state-level that constitute domestic support for sugarcane, and that total sum of such domestic 
support exceeds the de minimis level, as applicable to India under th e AoA.  In particular, they allege 
that India's Fair and Remunerative Price  ("FRP") for sugarcane and the State Advised Price ("SAP") 
applied by certain Indian States, constitute "market price support"  under paragraph 8 of Annex 3 of 
the AoA.   
2. India ha s claimed that the complainants have failed to demonstrate that India has acted 
inconsistently with its obligations under article 3.2 and 6.3 and/or article 7.2 of the AoA, since the 
complainants have not met their burden of proof of demonstrating that the  FRP/SAP measures 
qualify as a "market price support"  under Annex 3 of the AoA.1   
3. In particular, India considers that as neither Annex 3 nor any other provision of the AoA define 
the concept of "market price support",  paragraph 2 of such Annex do offe r guidance on what may 
constitute  a market price support and that in accordance with that provision, in order for a particular 
measure to qualify as a "market price support", such measure shall include both budgetary outlays 
and revenue forgone by "govern ments or their agents".   India argues that since the sugar mills that 
purchase sugarcane from the farmers at FRP/SAP are neither the government nor its agents, the 
FRP/SAP cannot therefore be characterized as a "market prices support" under Annex 3 of the AoA.  
India therefore concludes that since the complainants have not taken this issue into consideration, 
they have failed to demonstrate that the FRP/SAP constitute market price support under the AoA.   
4. Costa Rica is of the view that in order to assess  if a Member has acted inconsistently with its 
obligations under articles 3.2, 6.3 and/or 7.2 of the AoA by providing domestic support that exceeds 
its de minimis  levels, it is necessary that the challenged measures (in this case the FRP/SAP) be 
characteri zed as domestic support measures in the first place.  Only then could a possible 
quantification of these measures be made.    
5. The Parties to this dispute agree that there is not a definition in the AoA of what constitutes 
domestic support and/or market price support.  As stated above, India relies on the guidance 
provided by other provisions such as paragraph 2 of Annex 3 of the AoA to present its views on how 
these terms should be interpreted and/or assessed.   
6. Costa Rica notes that complainants have  provided a detailed description of the FRP/SAP in 
their written submissions and that their characterization of these measures as domestic support 
measures (in this particular case as market prices support) relies mostly on the particular 
characteristics o f the measures themselves and how they would fit within the required elements to 
quantify the market price support, as established by paragraph 8 of Annex 3 of the AoA.  In doing 
so, they have also relied on previous panel reports, in particular on China – Agricultural Producers , 
Korea – Various Measures on Beef , and China – GOES.   
7. While Costa Rica agrees with India that there is no rule of binding precedent or stare decisis  
within the WTO dispute settlement process, Costa Rica believes that previous WT O panel reports 
may provide valuable guidance in assessing the characterization of the measures in question, in 
particular given the lack of definitions under the AoA.   
8. Costa Rica believes that the characterization of the FRP/SAP as domestic support me asures 
would depend on different elements, which if taken together, would provide the necessary guidance 
to determine if there has been a violation of articles 3.2, 6.3 and/or 7.2 of the AoA.   
 
1 India's first written submission, para 59.   WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  II. INTERPRETATION OF ARTICLE 1.1 (A) (1) OF THE SCM AGREEMENT  AND ITS 
RELATIONSHIP WITH THE EXPORT SUBSIDY CLAIMS UNDER ARTICLE 9 OF THE AOA.  
9. The Complainants allege that India provides subsidies to its sugar producers that are 
contingent upon export performance and since India has no reduction commitments for ex port 
subsidies, it is not entitled to provide these types of subsidies for any agricultural product.  Therefore, 
by maintaining export subsidies for sugar, India has acted inconsistently with its obligations under 
Articles 3.3, 8, and 9.1 of the Agreement of Agriculture.2   
10. India considers that complainants have failed to make a prima facie case that India has acted 
inconsistently with its obligations under Articles 3.3, 8, 9.1 or Article 10, since the complainants 
have failed to demonstrate that a sub sidy exists within the meaning of the AoA.  
11. Costa Rica notes that all Parties to the dispute seem to agree that one of the elements required 
as part of the legal standard applicable to Article 9.1 (a) of the AoA is the existence of "direct 
subsidies"3, and that given the absence of the terms "subsidies"  and "direct subsidies" within article 
9.1 (a) of the AoA, the SCM Agreement would be relevant in the interpretation and application of 
that provision of the AoA, in particular article 1.1 of the SCM Agre ement, which defines what a 
subsidy means.   
12. Costa Rica believes that article 1.1 of the SCM Agreement is in fact relevant in the 
interpretation and application of article 9.1 (a) of the AoA.  However, and without prejudice of the 
complainants' views r egarding the actual implementation of the challenged measures under their 
export subsidies complaints, Costa Rica disagrees with India's interpretation that the requirement 
established in article 1.1 (a)(1) of the SCM Agreement requires a demonstration tha t the financial 
contribution has "actually"  been made, in order to assess the existence of a subsidy.   
13. According to India, the complainants have not provided any evidence of actual financial 
contribution with respect to the challenged measures and the refore have failed to demonstrate the 
existence of a financial contribution, and hence the existence of a subsidy within the meaning of 
article 9 of the AoA.4   
14. In Costa Rica's view, India's interpretation of Article 1.1 (a) (1) of the SCM Agreement g oes 
beyond the same rules of interpretation that India relies on when it responds to the claims regarding 
export subsidies under the SMC Agreement.5 
15. According to Article 31 (1) of the Vienna Convention, a treaty is to be interpreted in good faith 
in accordance with the ordinary meaning to be given to the terms of the treaty in their context and 
in the light of its objective and purpose.   
16. Costa Rica believes that the main purpose of the SCM Agreement is to discipline the use of 
subsidies that may h ave adverse effects on international trade.  An interpretation as the one 
suggested by India will go against the object and purpose of the SCM Agreement since it would have 
the effect of placing and extraordinary burden on WTO Members that wish to challeng e subsidies 
under the SCM Agreement and/or the AoA.  In fact, India's position implies that a measure is 
inconsistent with the SCM Agreement and the AoA only if actual financial contribution, income or 
price support has taken place.  Under this reading, a subsidy scheme contained in the law could not 
be challenged if actual government assistance has not been given in practice.  Thus, to challenge a 
 
2 Guatemala's first written submission, para 242, Australia's first written submission, para 251, Brasil's 
first written submission, inter alia , para 233.  Australia also alleges as an alternative, a violation of articles 8 
and 10.1 of the AoA.   
3 India's firs t written submission, para 100, Guatemala's first written submission, para 262 -266, 
Australia's first written submission, paras 256, 261 -272, Brazil’s first written submission, paras 190 -272.  
Costa Rica believes that the full legal standard applicable to article 9.1 (a) of the AoA, is the one set up by the 
panel report in Canada – Dairy , para 7.38 that requires the existence of the following four elements: a) the 
existence of “direct subsidies, including payments in kind”; b) provided by “governments or th eir agenciesº; c) 
“to a firm, to an industry, to producers of an agricultural product, to a cooperative or other association of such 
producers, or to a marketing board”; and d) which are ºcontingent on export performance”.   
4 India's first written submission, para 109.  
5 India's first written submission, Section VII, paras 129 -145. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  subsidy, any complainant would have to demonstrate that a disbursement of funds have actually 
taken place.   
17. The ordinary meaning of the word "is" in this given context simply refers to the existence of 
a measure "within the territory of a Member" .  Ascribing the temporal meaning that India gives to 
this term would deprive the SCM Agreement of its object and p urpose.   
18. It is worth recalling that the complainants have challenged different measures as part of this 
dispute settlement procedures and that according to past WTO rulings, "…any act or omission 
attributable to a WTO Member can be a measure of that Member for purp ose of dispute settlement 
proceedings."6   
19. This interpretation would be in line with the same language expressed in Article 3.3 of the 
DSU, which refers to situations in which a Member considers that any benefits accruing to it directly 
or indirectly under the covered agreements are being impaired by measures taken by another 
Member.   
20. Certainly, the export subsidies challenged by the complainants would qualify as measures 
attributable to India, and these measures could potentially impair the benefits accruing to them 
directly or indirectly unde r the AoA, regardless of the fact that the export subsidies have been 
"actually"  provided, as India suggests.   
III. APPLICABILITY  TO INDIA OF ARTICLE 3.1 OF THE SMC AGREEMENT.  
21. Costa Rica notes that both Guatemala and Australia have claimed that certai n measures 
applied by India related to export subsidies are inconsistent with India's obligations under 
Articles  3.1 (a) and Article 3.2 of the SCM Agreement.   
22. In response to these claims, India argues that article 3 of the SCM Agreement is not applic able 
to India since it considers that, upon graduating from Annex VII (b) of the SCM Agreement in 2017, 
India is entitled to the eight year phase out period of export subsidies provided to other developing 
countries under Article 27.2 (b) of the SCM Agreem ent.   
23. Costa Rica disagrees with India's interpretation.  In Costa Rica's view, Article 27.2 (b) of the 
SCM Agreement is clear in that the eight year phase out period was counted from the date of entry 
into force of the WTO Agreement, and this period i nitially expired in 2003.  Therefore, India already 
was entitled to the same treatment that "other developing country Members"  were entitled to under 
that provision.   
24. In fact, taking into consideration that many developing countries had to phase out t heir export 
subsidies by 2003 and that India was able to maintain them until it graduated under Article 27 (b) 
of the SCM Agreement in 2017, India actually was provided a more favourable treatment that these 
"other developing country Members".   
25. Costa Rica takes note that this same issue has already been addressed in India – Export 
Related Measures,  as pointed out by Australia in its first written submission.7  Even though the panel 
report in that case has not yet been adopted by the DSB, Costa Rica sh ares the views and conclusion 
expressed by the panel in their report that "…Article 27 no longer excludes India from the application 
of Article 3.1 (a) of the SCM Agreement."8 
 
 
6 Appellate Body Report, US – Corrosion Resistant Steel Sunset Review , para. 81.   
7 Australia's first written submission, para. 539.  
8 Panel report, India – Export relat ed measures, para. 7.74.   WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF  EL SALVADOR* 
 
I. INTRODUCTION  
1.  El Salvador is participating in the present dispute given its systematic interest in application 
of the General Agreement on Tariffs and Trade 1994 and the Agreement on Agriculture. It considers 
that any domestic support for the production of agricultural products outside legally established 
limits, as well as export subsidies for agricultural products, distort international trade. The former 
undermine commitments to market access made by Member countries, giving advantages to their 
domestic industries that  compete with imports, while the latter lead to unfair competition vis-à-vis 
third-party countries.  
2. El Salvador considers that sugar and sugarcane are strategic products for industries such as 
its own, hence the need to ensure legal certainty and guara ntee the principle of transparency in the 
trade rules on which commercial operators of this type of product depend. That is why our country 
considers its participation in this procedure to be timely.  
3. El Salvador will express its opinion on the prelimina ry objection brought by India and will then 
refer to the main complaints brought by the complaining parties. Lastly, it will present its conclusions 
regarding the alleged measures and their non -compliance with the covered agreements.  
II. FACTUAL BACKGROUN D 
4. In accordance with the complaining parties' contentions, India provides domestic support 
measures for sugar and sugarcane through a "fair and remunerative price" granted at the federal 
level and a "State advised price" at the state level, as well as o ther support measures to maintain 
the gap between prices and other non -exempt payments.  
5. Furthermore, India provides principally export subsidies for sugar in the form of direct 
payments, according to the complaining parties, through different modalities , including direct 
payments, direct payments related to regulated stocks, among others, all contingent on export yield.  
6. The measures adopted by India have affected commercial sugar and sugarcane operations in 
Brazil, Guatemala and Australia. On 15 Augus t 2019, this led to the formation of the Panel.  
7. On 19 March this year, India submitted a written reply to the allegations made in the present 
dispute by the complaining parties, which included the requirement of a preliminary objection for 
the procedure , stating that some of the measures alleged by the Parties had since had lapsed and 
for that reason, are outside the scope of the Panel's terms of reference.  
III. PRELIMINARY OBJECTION  
8. With regard to the objection made by India, El Salvador considers it relevant to revert to what 
was established in the Panel China – Domestic support for agricultural producers, to the extent that 
"instead of assessing whether the underlying legal instrume nts were formally terminated, a panel 
has to examine whether the challenged measure still affects the operation of the covered 
agreements".1 The foregoing implies that the termination of a legal instrument is not the same as 
the termination of a measure.  
9. Hence the reason why El Salvador considers that the Panel would be entitled, as part of its 
mandate, to examine the instruments implemented by India with regard to the sugar - and 
 
* El Salvador requested that its written submission, which was in Spanish, serves as its executive 
summary.  
1 Panel report, China – Domestic support for agricultural producers , WT/DS511/R, para 7.70.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  sugarcane -related measures; as well as to verify the effect of said measu res on the operations of 
the complaining parties.  
IV. ALLEGED MEASURES  
10. The complaining parties have indicated that India has taken the following measures:  
- domestic support for sugar and sugarcane;  
- export subsidies for sugar and sugarcane; and  
- failure by India to notify the above -mentioned support and subsidies.  
11. Based on the facts mentioned above, India has taken a series of measures which, according 
to the complaining parties, run contrary to the Agreement on Agriculture, the Agreement on 
Subsidies and Countervailing Measures (SCM Agreement) and the transparency obligations 
stipulated in the covered agreements and in GATT 1994.  
V. LEGAL BASIS  
5.1  Domestic Support  
12.  In accordance with the provisions of the Agreement on Agriculture, specifica lly Articles 3.2, 
6.3, 7.2(b) and 8, w here no Total AMS commitment exists in a Member's Schedule, the Member 
shall not provide support in excess of the relevant de minimis  level.  
13. Considering that India is a developing country, in accordance with Article 6.4(b) of the 
Agreement on Agriculture, the de minimis  percentage for product -specific domestic support is 10% 
of the value of total agricultural production.  
14. Therefore, when dom estic support is provided, it should be under the terms of the Agreement 
on Agriculture. Consequently, El Salvador considers that all WTO Members should guarantee 
compliance with the obligation set out therein.  
5.2  Export Subsidies  
15. The complaining par ties contended that India grants export subsidies within the meaning of 
Article 9.1(a) of the Agreement on Agriculture as they are direct subsidies provided by governments 
or their agencies to a firm or to an industry, to producers of an agricultural produ ct, to a cooperative 
or other association of such producers or to a marketing board, contingent on export performance.  
16. Similarly, the complaining parties allege that India grants exports subsidies within the 
meaning of Article 9.1(c) of the Agreement on Agriculture as these are payments for the export of 
sugar financed through governmental measures.  
17. The complaining parties thus add that the subsidies conditional on exports granted by India 
are prohibited subsidies by virtue of the provisions of Ar ticle 3 of the SCM Agreement.  
18. El Salvador maintains that it is imperative for Members to refrain from granting prohibited 
subsidies in accordance with the provisions of Article 3 of the SCM. Therefore, these export subsidies 
are incompatible with the A rticle 9.1 of the Agreement on Agriculture.  
VI. CONCLUSIONS  
El Salvador observes that India did not establish any domestic subsidy reduction commitment in 
Section I, Part IV of the Schedule of Concessions, hence by virtue of the provisions of Article 6.4 of 
the Agreement on Agriculture, the measures in question can not exceed the de minimis level of 10%.  
El Salvador also wishes to indicate that India did not establish any export subsidy reduction 
commitment in Section II, Part IV of its Schedule of Concessions related to sugar or sugarcane which 
would allow it to mak e use of export subsidies.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  El Salvador considers that the measures taken by India related to domestic support and export 
subsidies for sugar and sugarcane, should be implemented in accordance with the provisions of the 
WTO Agreements. The importance of ful filling the obligation to notify each Member of the measures 
implemented in its country, based on the principle of transparency, should be underscored.  
Based on the foregoing, El Salvador requests that the Panel review carefully the scope of the 
complaints  in the light of this communication and those submitted by Guatemala, Brazil and Australia 
in their respective briefs as complaining parties.  
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION* 
 
1. INTRODUC TION  
1. The European Union is grateful for this possibility to express its views.  
2. INDIA'S PRELIMINARY RULING REQUEST  
2. On 9 November 2020 the Panel communicated to the Third parties its decision as regards 
India's preliminary  request to the effect that certain measures where falling outside the Panel's 
terms of reference.  
3. The European Union's share the Panel's conclusi on and therefore it does not consider it 
appropriate to deal with this matter any further.  
3. OBSERVATIONS OF THE EUROPEAN UNION  
1. MARKET PRICE SUPPORT AND APPLIED ADMINISTERED PRICE  
4. The European Union would like to briefly reiterate its position acc ording to which the notion of 
applied administered price (AAP), which is one of the elements for the calculation of market price 
support, does not require payments (or revenue foregone) from the government or its agent.  
5. India's opposite view tends to l imit the scope of the AoA's domestic support commitments to 
support granted in the form of subsidies (or in any event measures that require a budgetary outlay 
or revenue foregone by the government or its agent).  
6. The preamble of the AoA, however, refers to the objective of achieving substantial progressive 
reductions in agricultural support, and not only progressive reduction of subsidies for agricultural 
production. Hence, the objective of the AoA is broader than that of limiting domestic subsidies. 
Subsidies are just a means of granting support but do not exhaust the means by which government 
can support agricultural production.  
7. The text of paragraphs 1 and 2 of Annex 3 of the AoA (entitled Domestic Support: Calculation 
of the Aggregate Measurement of  Support) suggests that domestic support does not require 
budgetary outlays or revenue foregone by governments or their agents . Paragraph 1 of Annex 3 of 
the AoA lists three forms of domestic support: market price support, non -exempt direct payments, 
or an y other subsidy not exempted from the reduction commitments. That listing shows that there 
are three different forms of domestic support, which should have different characteristics; otherwise 
there would be no reasons for using three different expressions  to identify them. Paragraph 2 refers 
to just one of those forms of domestic support and clarifies that "subsidies" under paragraph 1 
include both budgetary outlays and revenue foregone by governments or their agents.  
8. Moreover, according to paragraph 1 of Annex 2 of the AoA, domestic support measures which 
provide support through a publicly -funded government programme (including government revenue 
foregone) not involving transfers from consumers may be exempt from the reduction commitments. 
Hence, when t he support is not provided through a publicly -funded government programme the 
domestic support measure is not exempt from the reduction commitments, but it is still a form of 
domestic support falling within the purview of the AoA.  
9. Furthermore, paragraph  8 of Annex 3 states that Market Price Support shall be calculated 
using the gap between a fixed external reference price and the applied administered price. The 
second sentence of that paragraph adds that:  
 
* The European Union request ed that its oral statement serves as its executive summary.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  Budgetary payments made to maintain this gap, such as buying -in or storage costs, 
shall not be included in the AMS.  
10. Hence, where there are budgetary outlays the price support calculation should only take into 
account the difference between the AAP and  the FRP. This clarification strongly confirms that 
budgetary outlays are not an essential element of market price support measures.  
11. Finally, the WTO jurisprudence has constantly confirmed that the applied administrative price 
does not require budgeta ry outlays or revenue foregone from the government or its agent. The EU 
refers to the Panel Reports in China - Agricultural producers  and in Korea – Various Measure on Beef,  
which have been discussed in its written submissions.  
12. The EU is aware that th ere is no formal rule of precedent under WTO law. However, that does 
not imply in any way that continuity and consistency in the jurisprudence is less important. 
Continuity and consistency in the jurisprudence serve to provide security and predictability t o 
WTO Members and the multilateral trading system as a whole, which is key to the attainment of the 
objectives mentioned in the preamble of the Marrakesh Agreement establishing the WTO and the 
GATT (all the more so in this times of pandemic where certainti es melts like ice under the sun). 
WTO Members have recognised in Article 3.2 of the DSU that The dispute settlement system of the 
WTO is a central element in providing security and predictability to the multilateral trading system 
and that it serves to cla rify the existing provisions of the covered agreements. Therefore, departures 
from the legal clarifications contained in previous adopted reports should be avoided unless there 
are cogent reasons for doing so.  
13. The EU does not see any valid reason to de part from the consistent jurisprudence mentioned 
above.  
2. WHETHER THE MAEQ  SCHEME IS PERMITTED BY ARTICLE 9(4)  OF THE AOA  
14. India has submitted, in the alternative, that the MAEQ Scheme falls within the scope of 
Articles  9.1(d) and 9.1(e) of the AoA a nd is, therefore, permitted in accordance with Article 9.4 of 
AoA. India argues that the period referred to in Article 9.4 was further extended by WTO Members 
through the Nairobi Ministerial Decision on Export Competition.  
15. The Complainants do not appe ar to contest that India is entitled, in principle, to rely on 
Article  9.4 of the AoA, despite the expiry of the implementation period mentioned therein. Instead, 
the Complainants seem to argue that Article 9.4 is not available to India in this case becaus e the 
subsidies at issue do not fall within the scope of Articles 9.1(d) and 9.1(e) of the AoA.  
16. The European Union does not take position on the question of whether the subsidies at issue 
fall within the scope of Articles 9.1(d) and 9.1(e) of the AoA. The European Union, nevertheless, 
would invite the Panel to examine very carefully this issue. The mere fact that a granting authority 
describes a subsidy as aimed at covering transport or marketing expenses cannot be sufficient to 
consider that such subsi dy falls within the scope of Article 9.1 (d) or (e) of the AoA for the purposes 
of Article 9.4. Instead, it must be shown that there is some link, either in law or in fact, between the 
granting of the subsidies and those types of expenses. Otherwise, it wo uld be all too easy for a 
developing country Member to evade its obligations under the AoA simply by labelling all their 
subsidies as transport or marketing subsidies, regardless of their intended or actual use, and relying 
on Article 9.4.  
17. Furthermore , even if the subsidies at issue fell within the scope of scope of Article 9.1 (d) or 
(e) of the AoA, the European Union recalls that the exception granted by Article 9.4 is subject to the 
express condition that the export subsidies listed in those provisi ons "are not applied in a manner 
that would circumvent reduction commitments ." 
3. WHETHER THE EXEMPTION OF IMPORT DUTIES UNDER THE DFIA  SCHEME CONSTITUTES A SUBSIDY 
WITHIN THE MEANING OF THE AOA AGREEMENT AND THE SCM AGREEMENT  
18. The European Union agrees with India that the definition of subsidy in the SCM Agreement is 
relevant for the interpretation of the term of subsidy in the AoA. The European Union further agrees WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  with India that the remission of import duties in accordance wi th footnote 1 of the SCM Agreement 
cannot be considered as an export subsidy within the scope of Article 9.1 (a) of the AoA.  
19. The European Union understands that Australia's position is that the exemption of import 
duties under the DFIA Scheme does not comply with the requirements of footnote 1, in conjunction 
with paragraph (i) of Annex I of the SCM Agreement. The European Union does not take position on 
this question, which involves the assessment of factual elements beyond the EU's knowledge. The 
European Union, nevertheless, would invite the Panel to ascertain very carefully whether, as alleged 
by India, the exemption of import duties under the DFIA Scheme is in accordance with footnote 1 of 
the SCM Agreement, in conjunction with paragraph (i) of Anne x I. 
4. WHETHER ARTICLE 27 OF THE SCM  AGREEMENT EXCLUDES INDIA FROM THE SCOPE OF  THE 
SCM AGREEMENT  
20. Australia and Guatemala have submitted that certain measures applied by India are export 
subsidies prohibited under Article 3.1(a) of the SCM Agreement a nd that, in providing those 
subsidies, India acts inconsistently with its obligation under Article 3.2 of the SCM Agreement  
21. India states that Article 3 of the SCM Agreement does not apply to India by virtue of 
Article  27.2 of the SCM Agreement. The iss ue before the Panel is whether, in the case of India, the 
8 year period mentioned in Article 27.2 (b) of the SCM Agreement commenced on the date of entry 
into force of the WTO Agreement or on the date of India's graduation from Annex VII(b).  
22. The Europe an Union recalls that the same issue was raised in India – Export Related Matters . 
In that case, the panel concluded that the 8 year period mentioned in Article 27.2 (b) commenced 
in all cases on the date of entry into force of the WTO Agreement and, there fore, that India was not 
excluded from the scope of application of Article 3 of the SCM Agreement.  The panel report in 
India – Export Related Matters  is subject to appeal. Nevertheless, the European Union finds the legal 
reasoning of the panel in India – Export Related Matters  highly persuasive and sees no reason why 
the Panel should reach a different conclusion in this dispute.  
23. The EU thanks the Panel for its attention and for taking into account its views in solving this 
dispute.  
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX C -6 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN  
 
I. INTRODUCTION  
1. Japan has a systemic interest in ensuring the coherent interpretation of the WTO covered 
agreements, including the provisions of the DSU, the Agreement on Agriculture and the 
SCM Agreement. Since India is a top exporter and consumer of sugar, its measures may have 
substantial impacts on global supply of, and demand for, raw sugar, including New York raw sugar 
market. As an importer of raw sugar, Japan is interested in these proceedings particularly from the 
viewpoint of transparency. Japan limits its commen ts to four issues: (i) the concept of market price 
support under the Agreement on Agriculture; (ii) "financial contribution" requirement issues arising 
from the complainants' export subsidy claims; (iii) Article 27 and Annex VII(b) of the 
SCM Agreement, an d (iv) India's preliminary ruling request.  
II. MARKET PRICE SUPPORT UNDER THE AGREEMENT ON AGRICULTURE  
2. Japan now turns to the complainants' claim that India provides market price support to 
sugarcane producers in excess of India's 10 per cent de minimis  limit under the Agreement on 
Agriculture. The complainants have demonstrated that India exceeds the 10 per cent de minimis  
level through market price support provided under the FRP and SAP measures.  
3. India, relying on paragraph 2 of Annex 3 to the Agree ment on Agriculture, contends that those 
measures do not constitute "market price support" and should not be included in the calculation of 
its AMS. According to India, "Paragraph 2 delineates the scope of subsidies under paragraph 1",1 
such that the subs idies that must be included in a Member's AMS are only "budgetary outlays and 
revenue forgone by governments or their agents ."2 India contends that because the "sugar mills 
that purchase sugarcane from the farmers at FRP/SAP are neither government nor its  agents[,]" the 
FRP and the SAP programs do not qualify as "a subsidy by the government or its agents under 
Annex  3."3 
4. Japan disagrees with India's interpretation of paragraph 2 of Annex 3. Paragraph 2 does not 
limit the types of support to be included  in a Member's AMS to only "budgetary outlays and revenue 
foregone by governments or their agents". Paragraph 2 expressly states that "[s]ubsidies under 
paragraph 1 shall include  both budgetary outlays and revenue foregone by governments or their 
agents".4 Therefore, by its express terms, paragraph 2 does not exhaustively prescribe the types of 
financial transfers to be included in a Member's AMS calculation. Japan further points out that 
Article  XVI:1 of the GATT 1994 refers to the granting or maintaining  of "any subsidy, including any 
form of income or price support". This provides contextual support for the view that market price 
support under the Agreement on Agriculture is not limited in the manner argued by India. In addition, 
Sugarcane Order which se t out the purchase price for sugarcane was introduced in 1966, and India's 
Schedules (G/AG/AGST/IND) stipulates a market price support. The claim in India's Submission that 
the current FRP does not constitute the market price support is inconsistent with t hose facts.  
5. For the foregoing reasons, Japan disagrees with India's view that paragraph 2 of Annex 3 to 
the Agreement on Agriculture limits the types of support to be included in a Member's AMS to only 
"budgetary outlays  and revenue foregone by governme nts or their agents".  
III. "FINANCIAL CONTRIBUTION" REQUIREMENT OF EXPORT SUBSIDY CLAIMS  
6. Next, Japan turns to address the claims that India maintains  export subsidies in breach of the 
Agreement on Agriculture and the SCM Agreement. In relation to all of  the alleged export subsidies, 
India argues that, absent specific evidence of the "extent to which, if any, a government entity 
 
1 India's first written submission, paras. 61 -62. 
2 India's first written submission, para. 62. (emphasis original ) 
3 India's first written submission, para s. 63-64. 
4 Emphasis added.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  actually makes  a financial contribution", there is no proof that a subsidy exists.5 For India, a 
complainant must provide direc t evidence that payments have actually been made under a measure 
to demonstrate the existence of a subsidy.  
7. Japan does not agree with the approach  of India , not only because it is inconsistent with the 
text of the SCM Agreement, but also because it woul d set an unduly burdensome evidentiary 
requirement on complainants to establish the existence of a subsidy. First, subparagraph (i) of 
Article  1.1(a)(1) of the SCM Agreement identifies, as one type of financial contribution, a 
government practice involving  "a direct transfer of funds". As endorsed by the Appellate Body a few 
times, the term of "funds" implies not only money, but also financial resources and other financial 
claims more generally .6 "Financial contribution" therefore covers  conduct of the gov ernment by 
which money, financial resources, and/or financial claims are made available to a recipient ,7 the 
provision of which could automatically place the recipient in a better position than it would otherwise 
have been in the marketplace .8 
8. Second,  the approach  of India  could lead to circumvention of the disciplines under the 
Agreement on Agriculture and the SCM Agreement by shielding non -transparent export subsidy 
programs from scrutiny. If India's approach were adopted, it could provide an incenti ve for Members 
granting export subsidies not to provide all relevant data on the actual operation of their programs. 
Moreover, India's approach would also preclude WTO Members from making a claim that a measure 
"as such" constitutes an export subsidy under  the Agreement on Agriculture and the 
SCM Agreement. While Japan does not take any position regarding the facts in this dispute, in 
Japan's view, a legislative measure that sets out legal elements of an export subsidy may be found 
to constitute an export s ubsidy "as such", without further direct evidence of actual making of a 
financial contribution under that measure.  
IV. ARTICLE 27 AND ANNEX VII(B) OF THE SCM AGREEMENT  
9. Next, regarding the applicability of Article 3 of the SCM Agreement, Japan maintains that the 
text of Article 27.2(b) of the SCM Agreement does not leave any scope for ambiguity in respect of 
the end date of the transition contained therein. Japan then believes that Article 27.2(b) provides 
for a transition of "eight years from t he date of entry into force of the WTO Agreement" which ran 
from 1 January 1995 to 1 January 2003 during which the prohibition in Article 3.1(a) of the 
SCM Agreement did not apply to developing country Members or Annex VII(b) graduates.  
10. Furthermore, Ja pan views that a harmonious interpretation of Article 27.5 in connection with 
Article 27.2 of the SCM Agreement leads to the conclusion that Article 27.5 only applies to a 
developing country Member that is either in Annex VII(a) (least -developed countries)  or to a 
developing country Member that has not yet graduated from Annex VII(b), and can no longer apply 
to developing countries that graduated from Annex VII(b).  
11. Therefore, India is now subject to Article 3 of the SCM Agreement, as confirmed by the pa nel 
in India – Export Related Measures .9 Although the panel report in that dispute is still subject to 
appeal, Japan is of the opinion that it well addressed India's arguments which were mostly identical, 
and then provides helpful interpretative guidance on this issue.  
V. INDIA'S PRELIMINARY  RULING REQUEST  
12. Japan considers that measures not in existence at the time of the Panel's establishment does 
not necessarily  fall outside of the Panel's terms of reference. The Panel's terms of reference are 
defined by the complainants' panel requests, whi ch must meet the requirements of Article 6.2 of the 
DSU. However, Article 6.2 does not "set out an express temporal condition or limitation on the 
measures that can be identified in a panel request".10 As such, it does not "categorically" prohibit 
 
5 India's first written submission, paras. 107 and 147. (emphasis original)  
6 Appellate Body Reports, Japan – DRAMs (Korea) , para. 250; US – Large Civil Aircraft (2nd complaint) , 
para. 614.  
7 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 61 4. 
8 Panel Report, EC and certain member States – Large Civil Aircraft , paras. 7.1501 -7.1502; 
Appellate  Body Report, EC and certain member States – Large Civil Aircraft , footnotes 22 -23. 
9 Panel Report, India – Export Related Measures , para. 7.18.  
10 Panel Report, US – Washing Machines , paras. 7.248 -7.249.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  "the in clusion, within a panel's  terms of reference, of measures that come into existence or are 
completed after the panel is requested".11  
13. Regarding the alleged expired measures, Japan considers that a critical distinction must first 
be drawn between, on t he one hand, the measures at issue and, on the other hand, the legal 
instruments embodying them. It is the former, rather than the latter, which must fall within the 
Panel's terms of reference.12 If the Panel finds that the measures at issue have in fact expired, the 
Panel must consider whether to make findings on them in light of the objective of securing a positive 
solution to the dispute. The nature of the domestic support commitments under the Agreement on 
Agriculture weighs in favor of examining the W TO-consistency of the measures alleged to have 
expired. The Panel's analysis under Articles 3.2 and 6.3 of the Agreement on Agriculture is 
retrospective as it entails a determination of whether India was in compliance with its domestic 
support reduction co mmitments in years preceding the establishment of the Panel. I f the expiry of 
a legal instrument could shield a Member's provision of domestic support from later scrutiny, this 
would lead to easy circumvention of the domestic support commitments and obliga tions under the 
Agreement on Agriculture. Relevant considerations include whether the effects of the measures 
continue to impair the benefits accruing to the complainants under the Agreement on Agriculture, 
as well as the possibility of India reintroducing  the alleged expired measures.13 
14. Regarding the post -establishment measures at issue, Japan also considers that post -
establishment measures does not necessarily fall outside of a panel's terms of reference.  Panel's 
terms of reference may include post -establishment measures if: (i) the terms of reference are broad 
enough and (ii) "the new measure does not 'change the essence' of the original measures included 
in the [panel] request".14 Japan notes that the complainants' panel requests appear to contain 
language broad enough to cover the so -called MAEQ scheme, and the MAEQ Scheme is in essence 
the same as the measures described in the complainants' panel requests.   
15. In this respect, Japan supports the preliminary ruling of the Panel issued on the 9th of 
November 2020.  
 
11 Panel Report, US – Washing Machines , para. 7.248.  
12 Panel Report, Argentina – Footwear , paras. 8.40 -8.41. See also Appellate Body Report, US – Upland 
Cotton , paras. 262 and 270.  
13 Panel Reports, China – Agricultural Producers , para. 7.86; China – Electronic Payment Services , 
para. 7.228.  
14 Panel Report, EC – IT Products , para. 7.139.  WT/DS579/ FR/Add.1 • WT/DS580/ FR/Add.1 • WT/DS581/ FR/Add.1  
 
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  ANNEX C -7 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
 
1. The United States welcomes the opportunity to present its views to the Panel on the proper 
legal interpretation of certain provisions of the Agreement on Agriculture ("Agriculture Agreement")  
and the Agreement on Subsidies and Countervailing Measures  ("SCM  Agreement") as relevant to 
certain issues in this dispute.  
 
2. In their submissions, Australia, Brazil, and Guatemala (the "Complainants") calculated India's 
Aggregate Measurement of Support ("AMS") for sugarcane based on, amongst other measures, 
India's  market price support programs: the Fair and Remunerative Price ("FRP") and relevant State 
Advised Price ("SAP").  
3. India may, like other Members of the WTO, maintain domestic support programs, including 
market price support programs, as long as the dome stic support provided under those programs 
does not exceed the Member's fixed commitment levels. The Agriculture Agreement provides that 
each Member's "domestic support . . . commitments in Part IV of each Member's Schedule constitute 
commitments limiting subsidization," and that "a Member shall not provide support in favour of 
domestic producers [of agricultural products] in excess of the commitment levels specified in 
Section  I of Part  IV of its Schedule."  
4. India's consistency with this commitment is m easured in terms of its Current Total Aggregate 
Measurement of Support ("Current Total AMS"), which is the sum of the AMS provided to each basic 
agricultural product. Pursuant to Article  1(a) of the Agriculture Agreement, the AMS for each basic 
agricultura l product must be "calculated in accordance with the provisions of Annex 3 of this 
Agreement and taking into account the constituent data and methodology used in the tables of 
supporting material incorporated by reference in Part IV of the Member's Schedul e." Article 1(h), in 
turn, provides that a Member's "Current Total AMS" for a given year refers to "the sum of all domestic 
support provided in favour of agricultural producers, calculated as the sum of all aggregate 
measurements of support for basic agric ultural products, all non -product -specific aggregate 
measurements of support[,] and all equivalent measurements of support for agricultural products." 
Pursuant to Article 6.4 of the Agriculture Agreement, a Member's Current Total AMS does not include 
produ ct-specific AMS values that do not exceed the relevant de minimis  level of support.  
5. India, however, does not provide an AMS commitment level in Section I of Part IV of its 
Schedule of Concessions on Goods.   
6. For this scenario, Article 7.2(b) of the Agriculture Agreement provides: " Where no Total AMS 
commitment exists in Part IV of a Member's Schedule, the Member shall not provide support to 
agricultural producers in excess of the relevant  de minimis  level set out in paragraph 4 of Article 6." 
Article  6.4(b) of the Agriculture Agreement sets out the de minimis  level for developing countries 
at 10 percent. The parties agree this is the applicable de minimis level for India.  
7. Therefore, to determine India's Current Total AMS for each year, the Panel f irst must calculate 
the product -specific AMS for each basic agricultural product, and compare that value to the total 
value of production for that agricultural product. To the extent that the product -specific AMS for a 
basic agricultural product exceeds In dia's de minimis  level of 10 percent, the full value of that 
product -specific AMS would be included in India's Current Total AMS. Because India has not made a 
Total AMS commitment in Part IV of its schedule, in the event the product -specific AMS for any ba sic 
agricultural product exceeds the de minimis  level of 10 percent, India will have breached Articles  3.2 
and 6.3 of the Agriculture Agreement.  
8. Annex 3, paragraph 1 of the Agriculture Agreement sets out methodologies for calculating the 
value of a Member's "product -specific" AMS "for each basic agricultural product receiving market 
price support, non -exempt direct payments, or any other subsidy no t exempted from the reduction 
commitments ('other non -exempt policies')."  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  9. With respect to "market price support," while the Agriculture Agreement does not expressly 
define this term, the ordinary meaning of the constituent terms reflect the scope of do mestic support 
programs contemplated by this term. A "market" is the physical or geographic place where 
commercial transactions take place, or the business of buying and selling, including the rate of 
purchase or sale, of a particular good or commodity. "P rice" is defined as "a sum in money or goods 
for which a thing is or may be bought or sold." "Support" is defined as "the action of holding up, 
keeping from falling, or bearing the weight of something" or "the action of contributing to the success 
of or ma intaining the value of something."  
10. Relevant to the consideration of the term "market price support," the dictionary also supplies 
a number of definitions of compound terms. The Shorter Oxford English Dictionary , defines "market 
price" as "the current price which a commodity or service fetches in the market."  Further, it defines 
"price support" as "assistance in maintaining the levels of prices regardless of supply and demand."  
11. Thus, the ordinary meaning of the constituent terms, as well as the com pound phrases 
indicates that "market price support" is the provision of assistance in holding up or maintaining the 
price for a product in the market, regardless of supply and demand. In the context of Annex 3, 
paragraph 1, an AMS for "each basic agricultu ral product" includes the provision of assistance in 
holding up or maintaining a market price for that agricultural product. As such, this assistance can 
be provided directly by the Government or through consumer purchases.  
12. The panel in Korea –Beef reached the same understanding of the meaning of "market  price 
support" under Annex 3, paragraph 8. The panel noted that the "quantification of market price 
support in AMS terms is not based on expenditures by government," and that it "can exist even 
where t here are no budgetary payments." Further, it stated that "all producers of the products which 
are subject to the market price support mechanism enjoy the benefit of an assurance that their 
products can be marketed at least at the support price."  
13. Parag raph 8 of Annex 3 provides the methodology for calculating the specific type of support 
at issue in this dispute – market price support. Paragraph 8 states that "market price support shall 
be calculated using the gap between a fixed external reference price  and the applied administered 
price multiplied by the quantity of production eligible  to receive the applied administered price." The 
paragraph goes on to provide that "[b]udgetary payments made to maintain this gap, such as 
buying -in or sto rage costs, shall not be included in the AMS."  
14. Thus, the calculation of market price support is based on the price gap between the "applied 
administered price" identified in the domestic support measure and the "fixed external reference 
price," multipl ied by the quantity of eligible production. Based on the text of the 
Agriculture  Agreement and the ordinary meaning of the terms:  
• The "applied administered price" is the price the Indian measures provide  for each of 
the basic agricultural products and is  identified  for each product and each year in the 
Indian legal instruments implementing the program.  
• The "fixed external reference price" is a static reference value  defined by the Agriculture 
Agreement in Annex 3, paragraph 9. This states that the price  "shall be based on the 
years 1986 to 1988" and "may be adjusted for quality differences as necessary."  
• Finally, the "quantity of production eligible" to receive the applied administered price is 
the amount of the product fit or entitled  to receive the p rice, not the amount of 
agricultural product actually purchased. Because under India's programs all production 
is entitled to receive either the FRP or a higher SAP, the "quantity of production eligible" 
is the total sugarcane production volume for that ye ar. 
15. That is, "market price support" requires a comparison between the "applied administered 
price" and the "fixed external reference price." An "applied administered price" is the price "set by 
the government at which specified entities will purchase c ertain basic agricultural products. " The 
difference between these prices is then multiplied by the "quantity of production eligible to receive 
the applied administered price ." The Annex 3, paragraph 8 methodology thus indicates that a 
"market price support " measure would include an "applied administered price" that is available to WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  some quantity of "eligible" production; and that such support for each unit of the product can be 
measured through comparison of the administered price to a fixed, external "refer ence" price.  
16. The calculation methodology provide in Annex 3, paragraph 8, for market price support is 
reflected in the following equation:  
(Applied Administered Price – Fixed External Reference Price) * Quantity of Production Eligible = 
Value of Mark et Price Support  
As described above, the value of market price support for a basic agricultural product should be 
summed along with any other non -exempt product -specific support in favor of that product to 
calculate the AMS for that product.  
17. The Compl ainants' arguments in this dispute are consistent with the calculation methodology 
set out in the Agriculture Agreement and as recognized by the panels in China – Domestic Support 
and Korea –Beef. 
18. India attempts to argue that its market price support m easures do not quality as domestic 
support at all, and therefore should not be included in its AMS calculation. India mistakenly points 
to the text of Annex 3 to the Agricultural Agreement to make this argument.  
19. India's interpretation of Annex 3 is a m isreading of the text. Paragraph 2 does not limit 
paragraph 1. Rather, paragraph 2 specifies two forms of financial transfers that must be included in 
the list of support outlined in Paragraph 1. Paragraph 2 sets out this relationship with Paragraph 1 
through the use of the term "shall include." "Shall" is defined as "a command, promise, or 
determination" and "include" is defined as "[t]o contain as a member of an aggregate, or a 
constituent part of a whole; to embrace as a sub -division or section; to compr ise; to comprehend." 
Therefore, the ordinary meaning of "shall include" indicates that measures involving budgetary 
outlays and revenue forgone must be included as a part of the domestic support programs listed in 
Paragraph 1. The paragraph does not mean, as India argues, that the domestic support programs 
must be limited to only the type of transfers identified in Paragraph  2. In other words, budgetary 
outlays and revenue forgone form a subset, and not an outer boundary, of the kinds of support that 
must b e included in a Member's AMS calculation.  
20. Furthermore, Annex 3 is subject to Article 6 of the Agriculture Agreement, which sets out 
Members' "Domestic Support Commitments". While the term "domestic support" is not specifically 
defined in the Agricultur e Agreement, the ordinary meaning of the words making up this phrase 
reveal the broader nature of the term. "Domestic" is defined as "[o]f or relating to one's own country 
or nation; not foreign, internal, inland, 'home'." "Support" is defined as "[t]he ac tion or an act of 
helping a person or thing to hold firm or not to give way; provision of assistance or backing." India's 
proposed interpretation artificially limits the scope of such "assistance or backing" in a manner not 
supported by the ordinary meanin g of the term "domestic support."  
21. Moreover, India's proposed limitation on programs qualifying as market price support ignores 
the method for calculating market price support as set out in Paragraph 8 of Annex 3. Nothing in 
the calculation of market p rice support set out in Paragraph 8 necessarily involves payments by a 
government or its agents. In fact, the methodology of Paragraph 8 expressly excludes from the 
calculation of market price support budgetary payments made to maintain the price gap. Unde r 
India's reading, there would be no domestic support for market price support because Paragraph 2 
limits  domestic support to budgetary outlays, while Paragraph  8 excludes  budgetary payments.  
22. Therefore, the AMS calculation is intended to measure the total amount of support a 
WTO Member provides in favour of its domestic agricultural producers. In the case of market price 
support programs, the level of support provided must be included in that calculation whether or not 
it involves budgetar y outlays by the government. Consequently, the Complainants correctly include 
the support provided through India's FRP and SAP measures within their AMS calculations.  
23. The Complainants claim that India maintains export subsidies in breach of Articles 3. 3, 8, 
and 9 of the Agriculture Agreement and Article 3 of the SCM Agreement.   WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  24. Article 3.3 of the Agriculture Agreement sets out two categories of commitments for export 
subsidies: a commitment on scheduled agricultural products and a commitment on uns cheduled 
agricultural products. Section II of Part IV of India's Schedule does not list any commitments on 
sugar, therefore, sugar is an unscheduled agricultural product. Consequently, India has committed 
not to  provide export subsidies for sugar of the ty pe listed in paragraph  1(a) of Article  9 of the 
Agriculture Agreement.  
25. India also has committed not to provide sugar subsidies contingent on export through 
Articles  1 and 3 of the SCM Agreement. Where a Member has granted a subsidy as defined in 
Article 1.1 of the SCM Agreement, it will be prohibited as an export subsidy if the subsidy is 
inconsistent with the prohibitions in Articles 3.1(a) and 3.2 of the SCM Agreement.  
26. Like Article 9.1(a) of the Agriculture Agreement's restrictions on subsidies "c ontingent on 
export performance", Article 3.1(a) of the SCM Agreement prohibits subsidies that are 
"contingent  … upon export performance." There is nothing in these texts to suggest that "contingent 
on" and "contingent upon" have different meanings. The re levant dictionary definition of "contingent" 
is "[c]onditional; dependent on, upon; [d]ependent for its existence on something else." In the 
export subsidy context, "the grant of a subsidy must be 'tied to' export performance." Therefore, to 
find that a su bsidy is an export subsidy under either the Agriculture Agreement or the 
SCM Agreement, the subsidy must be conditioned, solely or as one of several other conditions, on 
export performance. This export contingency can be demonstrated "in law" ( de jure ) or 
"in fact" (de facto).  
27. India sets out two broad defences, both inadequate to rebut challenges to subsidy measures 
under the Agriculture Agreement and the SCM Agreement.   
28. First, India fails to recognize that export subsidies under the Agriculture Agreement are 
measured based  on amounts "allocated or incurred" by a government. Under the 
Agriculture  Agreement, India has a zero commitment level for export subsidies. T he export subsidy 
commitments India made in the Agriculture Agreement are measured based on allocation or 
incurre nce, not solely on actual payments made. If the Panel finds that Complainants are correct 
that India has granted legal authority for the provision of export subsidies and has made budgetary 
allocations to local authorities for the payment of those subsidie s, then those facts would provide a 
sufficient basis for the Panel to determine that India has provided export subsidies within the 
meaning of the Agriculture Agreement.  
29. Second, India also fails to acknowledge that, under the SCM Agreement, the burden  for 
showing that an export subsidy exists does not require specific evidence demonstrating that a direct 
transfer of funds, for example, has in fact been made to, or received by, a recipient entity. A measure 
setting out the legal elements of an export su bsidy, on its face, provides sufficient evidence to 
demonstrate the existence of such a subsidy. India's arguments would mean that a complainant 
would be prevented from demonstrating the existence of a subsidy because it did not have access 
to specific evi dence of payment information, such as proof of bank transfers or other payment 
activity. Such an evidentiary standard would shield respondents from potential liability under the 
WTO agreements and only incentivize non -transparency.  
30. The United States is  not aware of any dispute in which a panel or the Appellate Body has 
imposed such an evidentiary burden as India suggests on a complainant. For example, the panel in 
India –Export Related Measures  found the existence of subsidies based on an examination of  the 
measures themselves, and did not find that additional evidence of actual payments was required. 
Instructive in this dispute is the panel's analysis of the Merchandise Exports from India Scheme 
("MEIS").  
31. India's attempt to interpret the Agricultur e and SCM Agreements as requiring direct, 
evidentiary proof of actual government transfers to demonstrate the existence of a de jure  export 
subsidy finds no support in the text of the agreements, and must be rejected.  
32. Although Article 27 of the SCM Agr eement provides a limited exception to Article  3.1(a), India 
no longer qualifies for that limited exception. As acknowledged by India in this dispute, India's GNP 
per capita has already reached $1,000 for three consecutive years (2013, 2014, and 2015). 
Accordingly, India is no longer a developing country Member referred to in Annex VII and therefore WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  paragraph 2(a) of Article 27 of the SCM Agreement no longer applies to India. Paragraph 2(b) of 
Article 27 also does not apply to India. For "other developing c ountry Members" not listed in 
Annex  VII, subparagraph (b) provided a phase -out "for a period of eight years from the date of entry 
into force of the WTO Agreement." The WTO Agreement entered into force on January 1, 1995, and 
the "period of eight years" ex pired on January 1, 2003. Thus, because January 1, 2003 has passed, 
paragraph 2(b) does not apply to India, and India must terminate its export subsidies. As a result, 
India is now subject to Article 3 of the SCM Agreement. India's status vis -à-vis Article  3 of the 
SCM Agreement was confirmed by the panel in India – Export Related Measures .  
33. Properly interpreted, the SCM Agreement provides different end dates for the exemption of 
the prohibition in Article 3.1(a). India was an Annex VII(b) developing country Member. An 
Annex  VII(b) Member that graduated before January 1, 2003, may provide expo rt subsidies until 
January 1, 2003. Those Annex VII(b) Members that graduate after January 1, 2003, like India, are 
not obligated to end their export subsidies until the date of their graduation. Thus, those 
Annex  VII(b) Members that graduate after January  1, 2003, like India, would have had a longer  
period to provide export subsidies than a non -Annex VII developing country Member, described in 
Article 27.2(b), whose time to grant export subsidies ended on January 1, 2003.  
34. In other words, a Member gradu ating from Annex VII(b) after January 1, 2003, would receive 
better  treatment (in the sense of a longer implementation period) than the Members originally within 
the scope of Article 27.2(b).  
35. In sum, Article 27 of the SCM Agreement does not provide In dia with an additional eight years 
to phase out its export subsidies; therefore, India is subject to the obligations of Article  3.1(a) 
and 3.2 of the SCM Agreement.  
36. The United States appreciates the opportunity to submit its views in connection with t his 
dispute on the proper interpretation of relevant provisions of the Agriculture Agreement and the 
SCM Agreement.  
_______________  
 
 
 
 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX D  
COMMUNICATIONS BY THE PANEL REGARDING THE FIRST SUBSTANTIVE MEETING  
Contents  Page  
Annex D-1 Panel's communication to the parties conveying its decision to hold two 
substantive meetings, with the first substantive meeting to be held in a 
"hybrid" format, as well as proposing the dates, and the adoption of draft 
additional working procedures, for the first substantive meeting, dated 16 
October 2020   128 
Annex D -2 Panel's communication to the parties conveying its decision regarding the 
format and t he conduct of the first substantive meeting and adopting the 
Additional Working Procedures for the Panel's First Substantive Meeting to be 
Held by Remote Means, dated 2 November 2020  
 130 
Annex D -3 Panel's communication to the parties addressing India's confidentiality queries 
and request for postponement of the first substantive meeting, dated 
6 November  2020 133 
Annex D -4 Panel's communication to the parties and third parties regarding the 
postponement of the first substantive meeting, dated 18  November 2020  135 
 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX  D-1 
PANEL'S COMMUNICATION TO THE PARTIES CONVEYING ITS DECISION TO HOLD TWO 
SUBSTANTIVE MEETINGS, WITH THE FIRST SUBSTANTIVE MEETING TO BE HELD IN A "HYBRID" 
FORMAT, AS WELL AS PROPOSING THE DATES, AND THE ADOPTION OF DRAFT ADDITIONAL 
WORKING PROCEDURES, FOR THE FIRST SUBSTANTIVE MEETING, DATED 16 OCTOBER 2020  
 
Dear representatives of the parties,  
 
The Panel thanks the parties for submitting, on 9 October 2020, their comments on the two proposed 
modalities for holding the Panel's first substantive meeting with the parties and third parties.  
 
Having carefully reviewed the parties' comments, the Panel considers it appr opriate to hold two 
substantive meetings, as provided for in its Working Procedures. In light of the commitments of the 
panelists and the availability of meeting rooms in CWR, the Panel intends to hold its first substantive 
meeting with the parties and thi rd parties during the week of 23 November 2020.  
 
As for the format of the first substantive meeting, the Panel, in its communication of 2 October 2020, 
proposed to hold the meeting in a hybrid form, whereby representatives of the parties and third 
parties could participate either physically, in a meeting room at the WTO premises, or virtually, 
through video conferencing technology. The complainants agree with the proposed approach. India, 
however, disagrees with the Panel's proposal, arguing that pe rmitting representatives to connect to 
the meeting remotely would undermine India's due process right to a fair opportunity to make its 
defences. According to India, the physical presence of the panelists and representatives of the 
parties is an indispensa ble part of the WTO dispute settlement process. While recognizing the 
objective of prompt settlement of disputes, enshrined in Article 3.3 of the DSU, India contends that 
such objective should not be interpreted in a way that undermines India's due process  rights.  
 
The Panel notes that the DSU does not address the issue of the format of panel meetings. India has 
not identified any provision of the DSU precluding a panel, explicitly or implicitly, from holding a 
substantive meeting in the hybrid format propo sed by the Panel. Article 12.1 of the DSU allows 
panels to deviate from the Working Procedures in Appendix 3 to the DSU, "after consulting the 
parties to the dispute". As recognized by India, the Panel has been consulting the parties on the 
format of its f irst meeting for a couple of months now. The Panel does not agree with India's view 
that modification of the Working Procedures requires agreement of the parties.  
 
Furthermore, in the view of the Panel, the proposed hybrid format addresses the concerns ide ntified 
by India. First, the proposed format would not require any party or third party to attend the meeting 
remotely – parties' and third parties' representatives could attend the meeting physically or 
remotely, as they prefer. The proposed Additional Pr ocedures would allow the parties and third 
parties an adequate opportunity to fully present their claims and make out their defences, as 
indicated in the Working Procedures adopted by the Panel on 5 December 2019. Due process rights 
and equal treatment can  be fully assured. The Panel also notes that the proposed hybrid format is 
in accordance with past practice in WTO dispute settlement. For instance, in Australia – Tobacco 
Plain Packaging , the Appellate Body allowed a member of one of the complainants' del egations to 
participate in the appellate hearing via video conference.1 Further, we also note that, due to the 
constraints imposed by the pandemic, a number of WTO panels have recently held their meetings in 
the hybrid form proposed by this Panel. It is also public knowledge that a number of international 
tribunals and domest ic courts are now holding virtual hearings.  
 
The Panel recalls that the outbreak has already caused a delay of five months in these proceedings. 
Further, the current scientific information is far from allowing the Panel to predict when it may be 
able to ho ld an exclusively physical meeting. While the Panel acknowledges the benefits of holding 
an exclusively physical meeting, given the continued travel restrictions and health risks caused by 
 
1 See e.g. Appellate Body Reports, Australia – Tobacco Plain Packaging (Dominican Republic) , 
para. 1.21; Australia – Tobacco Plain Packaging (Honduras) , para. 1.21.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  the pandemic, on balance, the Panel finds it appropriate to hold it s first substantive meeting with 
the parties and third parties in a hybrid form.  
 
To this end, the Panel proposes to the parties the adoption of the attached Additional Working 
Procedures of the Panel Concerning Meetings with Remote Participation. Parties are invited to submit 
comments on these proposed Additional Working Procedures, as well as the proposed date of the 
first substantive meeting, by 5:00 p.m. (Geneva time) on Friday 23 October 2020.  
 
Finally, the Panel wishes to inform the parties that, sinc e the Chairman is in Switzerland, he intends 
to attend the first substantive meeting physically at the WTO premises, subject to further 
developments .  
 
 
 
 WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX  D-2 
PANEL'S COMMUNICATION TO THE PARTIES CONVEYING ITS DECISION REGARDING THE FORMAT 
AND THE CONDUCT OF THE FIRST SUBSTANTIVE MEETING AND ADOPTING THE ADDITIONAL 
WORKING PROCEDURES FOR THE PANEL'S FIRST SUBSTANTIVE MEETING TO BE HELD BY 
REMOTE MEANS , DATED 2 NOVEMBER 2020  
 
Dear representatives of the parties,  
 
The Panel recalls its communication, dated 16 October 2020, indicating its intention to hold the first 
substantive meeting with the parties and third parties in a hybrid format during the week of 
23 November 2020, and proposing the adoption of the draft Additional Working Procedures 
Concerning Meetings with Remote Participation.  
 
On 28 October 2020, the parties submitted their comments on the proposed Additional Working 
Procedures and the dates of the first substantive meeting. The complainants agreed with the 
proposed dates as well as the Additional Procedures, subject to one minor addition. India stated that 
it is unable to agree to a hybrid procedure because such a procedure does not qua lify as a substantive 
meeting under the DSU. According to India, a hybrid procedure would constitute a violation of India's 
due process rights because it is inequitable and would not allow India to sufficiently prepare and 
present its case. India also poin ted to a number of concerns related to the confidentiality of the 
procedure.  
 
The Panel is mindful of the disruptions caused by the COVID -19 pandemic and the difficulties faced 
by the parties in their work. The continuous public health crisis has already caused a significant 
delay in these proceedings. The Panel further recalls that, pursuant to Article 3.3 of the DSU, "prompt 
settlement" of disputes "is essential to the effective functioning of the WTO and the maintenance of 
a proper balance between the r ights and obligations of Members". The Panel therefore does not 
intend to alter its decision to proceed with the first meeting. Nonetheless, taking into account the 
comments provided by the parties, and in particular those by India, as well as the recent d ecisions 
by the Swiss authorities restricting physical meetings, the Panel has made certain modifications to 
the proposed format of the meeting.  
 
First, India argues that a "hybrid" meeting would be inequitable. India submits that, due to the travel 
restrictions imposed by the Swiss authorities, its legal representatives and external counsel will be 
unable to travel to Geneva, unlike certain representatives of the parties and third parties in this 
dispute. In India's view, the outcome would be advantageous to the complainants and contrary to 
the letter and spirit of Article 12.10 of the DSU. As the parties are aware, following receipt of India's 
comments, the authorities of the Canton of Geneva announced additional restrictions on physical 
meetings of more t han five people in public buildings, including within international organizations, 
as from 7 p.m. 2 November 2020. In light of this decision, the Panel has now decided to conduct 
its first meeting in a fully virtual manner , via Cisco WebEx videoconferencin g technology. This 
will allow representatives of all parties and third parties to attend the meeting remotely. The 
Additional Working Procedures for the Panel's First Substantive Meeting to be Held by Remote Means, 
adopted today by the Panel, are provided in the attachment to this communication.  
 
India further submits that a hybrid (or virtual) meeting would not qualify as a substantive meeting 
within the meaning of the DSU. The Panel notes that the DSU does not address the issue of the 
format of panel meet ings.1 The Panel is not precluded from amending its Working Procedures and 
conducting meetings in the format it deems appropriate, after consulting with the parties to the 
dispute, as provided for in Article 12.1 of the DSU. According to paragraph 11 of t he Working 
Procedures adopted on 5 December 2019, in the interest of full transparency and harmonization of 
the timetable, the parties agreed that the substantive meetings will take place in the presence of 
the parties to all three disputes. The proposed f ormat of the first meeting will allow all the parties, 
as well as third parties, to participate in the meeting via videoconferencing technology. All parties 
 
1 Appendix 3 to the DSU refers to a "substantive meeting of the panel", without specifying a particular 
format.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  and third parties will be connected with, and heard by, each other and the Panel. The virtual forma t 
will also allow the Panel to conduct the meeting in the manner envisaged in the Panel's adopted 
Working Procedures and in a way that will respect the parties' and third parties' due process rights: 
each party will be invited to present its opening and cl osing statements; third parties will be invited 
to present their views at the third -party session; and the parties will be given an opportunity to 
make comments or ask the other parties or third parties questions. In sum, the Panel considers that 
such a me eting conducted through videoconferencing technology does qualify as a substantive 
meeting under the DSU.  
 
India also claims that the Panel has failed to accord India a sufficient opportunity to prepare for, and 
effectively present, its case, contrary to Article 12.10 of the DSU. The complainants, on the other 
hand, have requested the Panel to send questions in advance of the meeting. In order to 
accommodate the parties' concerns and allow the parties time to effectively prepare and present 
their respective claims and defenses, the Panel has decided to send advance questions to the parties, 
10 working days before the start of the meeting. The questions will convey the Panel's key points of 
interest and allow the parties to coordinate between the ir relevant authorities well in advance of the 
meeting. The Panel has also decided that it will not pose any additional questions at the meeting, in 
order to provide maximum clarity as to the scope of the discussions at the meeting. The Panel may, 
if neces sary, send additional written questions to the parties and third parties following the 
conclusion of the meeting.  
 
According to India, the Panel has also overlooked concerns regarding the protection of confidentiality 
in the proposed proceedings. The Panel  disagrees. The Panel notes, first, that the obligation to 
respect the confidentiality of the meetings with the Panel applies regardless of the format of the 
meeting. As indicated in paragraphs 12(2) and 19(2) of the Working Procedures, each party and 
third party shall ensure that members of their delegations act in accordance with the DSU, in 
particular with regard to the confidentiality of the proceedings. Further, participants in the virtual 
meeting have to respect the confidentiality and security rules specified in the Additional Working 
Procedures. Article 3.10 of the DSU sets forth WTO Members' understanding that "if a dispute arises, 
all Members will engage in these procedures in good faith and in an effort to resolve the dispute". 
The Panel has no re ason to doubt that the parties will observe such fundamental obligations in these 
proceedings. Further, the Panel is of the view that the end -to-end encryption that Webex provides 
for will protect the confidentiality of the Panel's meeting with the parties  and third parties.  
 
Regarding the logistical and technical concerns raised by India, the Panel will provide further 
guidelines in due course, covering issues such as the manner of document sharing, which has also 
been highlighted by the complainants. As r eflected in the Additional Working Procedures, the Panel 
has asked the Secretariat to test the platform with each delegation prior to the meeting, so as to 
demonstrate the use of the platform and detect any issues in advance of the meeting. Finally, the 
Panel will run a test with all participants, providing another opportunity for the parties and third 
parties to test and experience, in advance, all aspects of the virtual meeting.  
 
Taking into account the time differences among the parties and third parties , as well as panelists in 
this dispute, the Panel has decided to proceed with the meeting as follows:  
 
• On Monday, 23 November at 12:00 -15:00 (Geneva time) , the Panel will convene a test 
session with all participants from the parties and the third parties.  
 
• On Tuesday/Wednesday, 24-25 November at 12:00 -15:00 (Geneva time) , the Panel will 
begin its first meeting with the parties. The Panel will first invite the parties to deliver their 
opening statements. After the conclusion of the opening statements, the P anel will invite 
each party to comment or ask questions to the other parties. The Panel will also invite the 
parties to orally present their answers to the advance questions.  
 
• On Thursday, 26 November at 12:00 -15:00 (Geneva time) , the Panel will hold the 
third-party session. The Panel will not pose questions to any third party. The Panel will give 
the parties an opportunity to ask third parties questions about their submissions or 
statements. If necessary, the Panel will dedicate an appropriate amount of t ime to finalize 
this session on the following day.  
 
• On Friday, 27 November at 12:00 -15:00 (Geneva time) , the Panel will invite the parties to 
orally present their answers to any remaining advance questions. The Panel will also invite WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  the parties to deliver their closing statements. Thereafter, the Panel will end the first 
substantive meeting.  
 
The Panel invites the parties to fill in the attached Registration form and return it to the Panel by 
5 p.m. (Geneva time) on Monday, 9 Novembe r 2020.  
 
The details of the third -party session will be communicated to the third parties in due course.  
 
 
 
 
 
 
 
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  ANNEX  D-3 
 
PANEL'S COMMUNICATION TO THE PARTIES ADDRESSING INDIA'S CONFIDENTIALITY QUERIES 
AND REQUEST FOR POSTPONEMENT OF THE FIRST SUBSTANTIVE MEETING, DATED 
6 NOVEMBER  2020 
 
Dear all,  
 
The Panel thanks India for its communication of 4 November 2020. In the communication, India 
seeks clarification on two issues with respect to the confidentiality of the Pane l's first substantive 
meeting with the parties and third parties, scheduled for the week of 23 November 2020. Further, 
India points out that several key officials from the central and state authorities will be unavailable 
in the period preceding the first substantive meeting, due to a national festival. India also states 
that a key member of its delegation has contracted the COVID -19 virus and is in the process of 
recovery. Therefore, India requests that the Panel reconsider the dates for the first substant ive 
meeting and to reschedule it for the week of 7 December 2020.  
 
With respect to the confidentiality of the meeting, India inquires, first, what safeguards, if any, the 
Panel has adopted to ensure that the parties to the dispute respect the obligation t o preserve the 
confidentiality of the meeting. As the Panel noted in its communication of 16 October 2020, all 
participants are under the obligation to respect the confidentiality of the proceedings, as reflected 
in the DSU, the Panel's Working Procedures adopted on 5 December 2019, as well as the Additional 
Working Procedures adopted on 2 November 2020. The Panel also indicated that it has no reason to 
doubt that all participants will act in good faith and observe their fundamental obligations in the 
prese nt proceedings. The Panel therefore continues to expect the parties to abide by these 
confidentiality provisions, and act accordingly during the meeting.  
 
India also asks the Panel whether the WTO has entered into any formal agreement with Cisco Webex, 
to ensure that the platform maintains the confidentiality of the meeting. The Panel understands that 
there is no formal agreement between the WTO and Cisco Webex regarding confidentiality since 
such an agreement would be unnecessary. The Panel further unders tands that the IT security officers 
in the WTO Secretariat have assessed the security features of Cisco Webex and found it to be a 
suitable platform to hold virtual panel meetings. The WTO Secretariat has therefore purchased a 
number of licences from Cisco  Webex, necessary for scheduling and hosting meetings with 
end-to-end encryption. Based on the foregoing, and considering that Cisco Webex has been used by 
several WTO panels as well as other international tribunals so far, the Panel trusts that this platform 
should be able to protect the confidentiality of the Panel's first substantive meeting with the parties 
and third parties.  
 
India bases its request for the rescheduling of the meeting on two grounds. First, India points out 
that due to the Diwali festival, and other festivals following Diwali, several key officials dealing with 
these proceedings will be on leave. The Panel notes that the Diwali festival is an official public holiday 
across India and that, this year, it will be celebrated on 14 -15 N ovember. The Panel's first 
substantive meeting is scheduled for the week of 23 November, one week after the Diwali 
celebrations. The Panel recalls that it first indicated its intention to hold the meeting towards the 
end of November, in its communication t o the parties dated 2 October 2020. Subsequently, in its 
communication of 16 October 2020, the Panel specified its intention to hold the meeting during the 
week of 23 November 2020 and invited the parties to provide their comments thereon. On 
28 October 20 20, the complainants confirmed their availability to attend the meeting on the 
proposed dates. India, however, did not provide any comments on the proposed dates, in its 
response to the Panel's communication.  
 
Second, India states that a key member of its  delegation has caught COVID -19 and will need time 
to fully recover in order to attend the meeting. The Panel regrets to hear that the Indian colleague 
has been infected by the virus. The Panel notes that, unfortunately, the nature of the virus is such 
that it is impossible to predict whether any of the participants who are assigned to represent their WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  delegations at the meeting might contract the virus prior to the meeting. Indeed, it is this uncertainty 
that has urged the Panel to hold its first substantiv e meeting virtually.  
 
Finally, in this regard, the Panel wishes to emphasize that the scheduling conflicts of the members 
of the Panel precludes the Panel from holding this meeting at any other time before the end of the 
year.  
 
Therefore, the Panel is not in a position to reschedule its first substantive meeting.  
 
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  ANNEX  D-4  
 
PANEL'S COMMUNICATION TO THE PARTIES AND THIRD PARTIES REGARDING THE 
POSTPONEMENT OF THE FIRST SUBSTANTIVE MEETING, DATED 18 NOVEMBER 2020  
Dear all,  
 
On 17 No vember 2020, India informed the Panel that a key member of its delegation has contracted 
COVID -19 and will not be able to participate in the first substantive meeting scheduled for 
23-27 November 2020. India states that the delegate's participation in the first substantive meeting 
and in the preparation of India's responses to the Panel's questions is indispensable, both in terms 
of substantive aspects of the dispute as well as the logistics and organization of the meeting. India 
also states that several ot her delegates have gone into mandatory quarantine, further compromising 
its delegation's ability to prepare for the meeting. Therefore, India requests the Panel to postpone 
its first substantive meeting to December 2020, or to a later date on which all pan elists would be 
available.  
 
The Panel regrets to hear that another member of India's delegation has been infected by the virus 
and is unable to participate in the first substantive meeting. The Panel wishes this delegate a speedy 
recovery. The Panel unders tands the difficulties posed by this delegate's absence to India's 
preparation for the meeting. Therefore, in order to allow India to make alternative arrangements for 
the full participation of its delegation in the meeting, the Panel has decided to postpo ne its first 
substantive meeting with the parties and third parties to 7-11 December 2020 . 
 
The Panel finds it important to underline that the reason for the postponement of the meeting is not 
to provide time for the recovery of the affected Indian delegat e. Rather, this extension is granted so 
that India can make alternative arrangements in case the delegate at issue, or any other delegate, 
is unable to participate in the meeting due to health reasons. The Panel considers two weeks to be 
sufficient to make  such arrangements.  
 
Unfortunately, the outbreak continues affecting the flow of business in all corners of the world. All 
members of the delegations of the parties and third parties involved in this dispute, as well as the 
Panel and the Secretariat team, run the risk of contracting the virus prior to the date of the meeting. 
The Panel cannot grant extensions each time a member of a delegation is infected and unable to 
attend the meeting. In order to allow these proceedings to proceed, and to ensure that de legations 
make full use of their right to present views to the Panel, the Panel invites all the parties and third 
parties to make the necessary alternative arrangements that would allow their delegations to attend 
the meeting even if some delegates are una ble to participate for health reasons. Parties and third 
parties should note that the new dates for the Panel's first meeting are firmly set, and delegations 
should refrain from requesting the Panel to grant further extensions on health or other grounds.  
 
In light of the foregoing, the Panel will proceed with its first substantive meeting with the parties 
and third parties as follows:  
 
• On Monday, 7 December , at 12h00 -15h00 (Geneva time), the Panel will convene a test 
session with all participants from the p arties and the third parties.  
 
• On Tuesday -Wednesday, 8-9 December , at 12h00 -15h00 (Geneva time), the Panel will begin 
its first meeting with the parties. The Panel will first invite the parties to deliver their opening 
statements. After the conclusion of the opening statements, the Panel will invite each party 
to comment or ask questions to the other parties. The Panel will also invite the parties to 
orally present their answers to the advance questions.  
 
• On Thursday, 10 December , at 12h00 -15h00 (Geneva time), the Panel will hold the 
third-party session. The Panel will not pose questions to any third party. The Panel will give 
the parties an opportunity to ask third parties questions about their submissions or 
statements. If necessary,  the Panel will dedicate an appropriate amount of time to finalize 
this session on the following day.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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• On Friday, 11 December , at 12h00 -15h00 (Geneva time), the Panel will invite the parties to 
orally present their answers to any remaining advance question s. The Panel will also invite 
the parties to deliver their closing statements. Thereafter, the Panel will end the first 
substantive meeting.  
 
The Panel understands that the individual test sessions on Webex have been completed, and invites 
those delegation s that still need to resolve certain technical issues prior to the meeting to remain in 
touch with the designated person from the Secretariat. The Panel will be in further contact with the 
parties and third parties in order to finalize the remaining issues  in advance of the meeting.  
 
 
_______________  
 
 
 
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  ANNEX E  
PRELIMINARY RULING  
Contents  Page  
Annex E -1 Preliminary Ruling by the Panel concerning India's allegedly expired 
measures  dated  9 November 2020  138 
Annex E -2 Preliminary Ruling by the Panel concerning India's Marketing and 
Transportation Scheme  149 
 
 
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  ANNEX E -1 
1  PRELIMINARY RULING  BY THE PANEL  CONCERNING  INDIA'S  ALLEGEDLY EXPIRED 
MEASURES  DATED 9 NOVEMBER 2020  
1.1 Introduction  
1.1 In its first written submission, India sought an early preliminary ruling from the Panel1 that 
certain measures challenged by the complainants in their panel requests fall outside the Panel's 
terms of reference because they either expired before, or were enacted after, the Panel's 
establishment.2  
1.2 Specifically, India considers that, pursuant to Article 6.2 of the DSU, the measures at issue 
are only those measures that are in existence at the time of the panel's establishment.3 India 
contends that 11 measures identified in the complainants' panel requests expired before the 
establishment of the Panel and therefore fall outside its terms of reference.4 These are the Fair and 
Remunerative Price (FRP) for certain sugar seasons, the State Advised Price (S AP) for certain states 
in certain sugar seasons, purchase tax remission schemes of certain states, and certain subsidy 
schemes. Moreover, India points out that the " Scheme for providing assistance to sugar mills for 
expenses on marketing costs including ha ndling, upgrading and other processing costs and costs of 
international and internal transport and freight charges on export of sugar" (Marketing and 
Transportation Scheme), challenged by the complainants, was introduced on 12  September  2019, 
while the Pan el was established on 15 August 2019. Thus, according to India, the Marketing and 
Transportation Scheme came into existence after the establishment of the Panel and therefore is 
outside the Panel's terms of reference.5 India requests the Panel to address India's request in an 
early ruling such that the Panel process is efficient and does not require consumption of the parties' 
resources on issues that are clearly outside the Panel's terms of reference.6 
1.3 With respect to the allegedly expired measures, the complainants submit that India 
inaccurately characterizes as "measures" certain legal instruments identified in the complainants' 
panel requests.7 With respect to India's request regarding the Marketing and Transportation  Scheme, 
the complainants subm it that, although it was introduced after the Panel's establishment, the 
Marketing and Transportation  Scheme is within the Panel's terms of reference.8 Regarding the timing 
of the preliminary ruling, the complainants submit that since the Panel would be r equired to make 
factual findings in addressing India's request, it would not be appropriate to address India's request 
through an early ruling.9 
1.4 In this preliminary ruling, the Panel considers it appropriate to address India's request 
concerning the a llegedly expired measures identified in the complainants' panel requests. The Panel 
will address India's request regarding the Marketing and Transportation Scheme later in the 
proceedings.  
 
1 The Panels in DS579, DS580, and DS581  are herein collectively referred to as  "the Panel".  
2 India's first written submission , para. 32; India's comments regarding its request for a preliminary ruling, 
27 April 2020 , para. 4.  
3 India's first written submission, para. 37 (quoting Appellate Body Report, EC – Chicken Cuts , para.  156). 
4 India's first written submission , paras. 40 -42. 
5 India's first written submission , para. 44.  
6 India's comments regarding its request for a preliminary ruling , 27 April  2020, para. 61.   
7 Brazil 's comments regarding India 's request for a preliminary ruling, 1 April 2020, para. 28; Australia 's 
comments regarding India 's request for a preliminary ruling, 1 April 2020, para. 6; Guatemala 's comments 
regarding India 's request for a preliminary ruling, 1 April 2020, para. 10.  
8 Brazil 's comment s regarding India 's request for a preliminary ruling, 1 April 2020, para. 59; Australia 's 
comments regarding India 's request for a preliminary ruling, 1 April 2020, para. 65; Guatemala 's comments 
regarding India 's request for a preliminary ruling, 1 April 2020, para. 44.  
9 Australia 's comments regarding India 's request for a preliminary ruling, 1 April 2020, para. 22; 
Guatemala 's comments regarding India 's request for a preliminary ruling, 1 April 2020, para. 67.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1.2 Article 6.2 of the DSU  
1.5 Article 6.2 of the DSU sets out the requirements applicable to a panel request. It provides, in 
relevant part:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide 
a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
1.6 This provision requires, inter alia , that a panel request (i) identify the specific measures at 
issue, and (ii) provide a brief summary of the legal basis of the complaint. Together, these two 
elements constitute the "matter referred to the DSB", which forms the basis for a panel's terms of 
reference under Article 7.1 of the DSU.10 The requirements under Article  6.2 are "cent ral to the 
establishment of the jurisdiction of a panel".11 A panel request governs a panel's terms of reference 
and delimits the scope of the panel's jurisdiction.12 In addition, by establishing and defining the 
jurisdiction of the panel, "the panel reque st also fulfils a due process objective" by providing the 
respondent and third parties with notice regarding the nature of the complainant's case and enabling 
them to respond accordingly.13 
1.7 In assessing whether a panel request is sufficiently precise t o meet the requirements of 
Article  6.2 of the DSU, panels must "scrutinize carefully the panel request, read as a whole, and on 
the basis of the language used".14 Whether a panel request complies with the requirements of 
Article  6.2 must therefore be deter mined on the face of the panel request15, on a case -by-case 
basis.16 Defects in the request for the establishment of a panel cannot be cured in the subsequent 
submissions of the parties during the panel proceedings. However, "in considering the sufficiency  of 
a panel request, submissions and statements made during the course of the panel 
proceedings,  … may be consulted in order to confirm the meaning of the words used in the panel 
request".17 
1.8 Pursuant to Article 6.2, the measures at issue, together with  the legal basis of the complaint, 
define the jurisdiction of a panel. We recall, in this respect, that a "measure" is "any act or omission 
attributable to a WTO Member".18 The "specific measure at issue" under Article 6.2 is the "object of 
the challenge, namely, the measure that is alleged to be causing a violation of an obligation 
contained in a covered agreement".19 
1.9 Measures are usually reflected in legal instruments,  which constitute evidence of the existence 
or operation of a particular measure. A measure can be contained in one or several legal instruments. 
It can also be contained in parts of a legal instrument (e.g. specific sections or provisions of a law), 
or in different parts of various legal instruments which, when read together, reveal the existence of 
the relevant act or omission. The conceptual distinction between measures and legal instruments 
does not necessarily preclude the possibility that some measure s may be coterminous with a single 
 
10 Appellate Body Reports, EU – PET (Pakistan ), para. 5.13; US – Countervailing Measures (China) , 
para. 4.6; US – Carbon Steel , para. 125; Guatemala – Cement I , paras. 69 -76. 
11 Appellate  Body Report, US – Countervailing Measures (China) , para.  4.6. 
12 Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.12. See also 
Appellate  Body Reports,  Korea – Pneumatic Valves  (Japan) , para. 5.4;  EC and certain member States – Large 
Civil Aircraft , para.  640; US – Countervailing Measures (China) , para.  4.6; US – Countervailing and Anti -Dumping 
Measures  (China) , para.  4.6. 
13 Appellate  Body Report, US – Countervailing and Anti -Dumping Measures  (China) , para.  4.7 (referring 
to Appellate  Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p.  186; Chile – Price Band System , 
para. 164; Thailand – H-Beams , para.  88; US – Continued Zeroing , para.  161).  
14 Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.13 (quoting 
Appellate  Body Report, EC – Fasteners (China) , para.  562 (fn omitted) ). 
15 Appellate  Body Reports, Korea – Pneumatic Valves  (Japan) , para. 5.5; US – Carbon Steel , para.  127; 
China  - HP-SSST (Japan) / China  – HP-SSST (EU) , para.  5.13.  
16 Appellate  Body Reports,  Korea – Pneumatic Valves  (Japan) , para. 5.5; Korea – Dairy , para.  127; 
China  - Raw Materials , para.  220; US – Countervailing and Anti -Dumping Measures (China) , para.  4.17.  
17 Appellate  Body Report , US – Carbon Steel , para.  127 (referring to Appellate  Body Report, 
Thailand  – H-Beams , para.  95). See also Appellate  Body Reports, China – Raw Materials , para. 220; 
China  – HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.13. 
18 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 81.  
19 Appellate Body Report, EC – Selec ted Customs Matters , para. 130.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  legal instrument.20 In a dispute, a Member may thus challenge a legal instrument as such and 
identify it as a measure at issue.21 However, such exact identity between the challenged measure 
and the legal instrument contai ning it does not alter the conceptual difference between a measure 
and a legal instrument. As a general rule, to be within a panel's terms of reference, the measure 
identified in the complainant's panel request must be in force at the time of the panel's 
establishment.22 By contrast, legal instruments implementing the challenged measure may be 
withdrawn, amended or newly introduced over time.   
1.10 Accordingly, a distinction can be drawn between measures at issue and evidence produced in 
support of a claim  of inconsistency.23 While there are temporal  limitations on the measures that may 
be within a panel's terms of reference, such limitations do not  apply in the same way to evidence. 
Evidence in support of a claim challenging measures that are  within a pane l's terms of reference 
may pre -date or post -date the establishment of the panel. A panel  is not precluded from assessing 
a piece of evidence for the mere reason that it pre -dates or post -dates  the panel's establishment. A 
panel enjoys a margin of discretio n in determining the relevance and probative value of a piece of 
evidence that pre -dates or post -dates its establishment.24 A panel may consider a piece of evidence 
that expired before, or came into existence after, the panel's establishment to be relevant  to its 
assessment of whether the measure at issue was inconsistent with the relevant provisions of the 
covered agreements at the time of the panel's establishment.  
1.3 Whether certain elements in the complainants' panel requests are measures that 
have ex pired  
1.11 India submits that, pursuant to Article 6.2 of the DSU, the measures within a panel's terms of 
reference are those identified in the panel request.25 India considers that the measures at issue 
under Article 6.2 of the DSU are only those measures that were in existence when the panel was 
established.26 
1.12 India argues that there is no distinction between a measure and a legal instrument reflecting 
that measure.27 In India's view, the following measures expired before the establishment of the 
Panel and thus are outside the Panel's terms of reference28: 
Regarding domestic support to sugarcane  Regarding export subsidies to sugar  
1. "[M]easures notifying the FRP for the  
sugar seasons 2014 -15 and 2015 -16" 10. Scheme for Extending Production 
Subsidy to Sugar Mills for the 2015 -16 
sugar season  
2. Scheme for Extending Soft Loan to 
Sugar Mills for the 2014 -15 sugar 
season  11. Raw Sugar Export Incentive Scheme for 
the 2014 -15 sugar season  
3. SAP with respect to state of Andhra 
Pradesh including for the sugar seasons 
2015-16 and 2016 -17   
 
20 As the panel in US – Shrimp (Viet Nam)  noted, "a measure may be identified either by its form 
(e.g. name, number, date and place of promulgation of a law or regulation, etc.) or by its substance (e.g. by 
providing a narrat ive description of the nature of the measure)." (Panel Report, US – Shrimp (Viet Nam) , 
para. 7.50)  
21 For instance, in EC – Fasteners (China) , one of the challenged measures was a specific provision of a 
legal instrument adopted by the European Union, namely, Article 9(5) of the EU's Basic Anti -Dumping Regulation, 
which contained rules on the calculation of dumping margins for exporters from what were considered 
non-market economy countries. (Panel Report, EC – Fasteners (China) , para. 2.1)  
22 However, measures that have expired or have been amended after the panel's establishment may also 
fall within the panel's terms of reference. (Appellate Body  Reports, Chile – Price Band  System , paras.  139-144; 
EU – PET (Pakistan)  paras. 5.19 and 5.51)  
23 Panel Report, China – Agricultural Producers , para. 7.89.  
24 Appellate Body Report, EC – Selected Customs Matters , para. 188. As the panel in China – Agricultural 
Producers noted, "evidence reflects the operation of the measures within a given time -period" . (Panel Report, 
China – Agricultural Producers , para. 7.89)  
25 India's first written submission , para. 36. 
26 India's first written submission, para. 37 (quoting Appellate Body Report, EC – Chicken Cuts , para.  156). 
27 India's comments regarding its request for a preliminary ruling , 27 April 2020 , paras.  10-11, 19, and  27. 
28 India's first written submission , paras. 40 -42. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  Regarding domestic support to sugarcane  Regarding export subsidies to sugar  
4. SAP with respect to the state of 
Haryana for the sugar seasons 
2014-15, 2015 -16, 2017 -18  
5. SAP with respect to the state of Punjab 
for the suga r seasons 2014 -15, 
2015-16, 2017 -18  
6. SAP with respect to the state of Tamil 
Nadu for the sugar seasons 2014 -15, 
2015-16, 2017 -18  
7. SAP with respect to the state of Uttar 
Pradesh for the sugar season 2015 -16  
8. SAP with respect to the State of Bihar29  
9. Purchase tax remission schemes of 
certain states, namely, Andhra Pradesh, 
Bihar, Maharashtra, Telangana, and 
Uttar Pradesh   
 
1.13 With respect to the purchase tax remission schemes of certain states, India relies on the on 
Gazette of India, Notification No. 1/2018 (Goods and Services Tax Compensation), G.S.R. 1116(E), 
Ministry of Finance, Department of Revenue of 14 November 2018  and sub mits that, with the 
introduction of the Central Government Goods and Service Tax (GST) in 2017, the purchase tax 
remission has been discontinued with effect from 14 November 2018.30 India also refers to the 
Communication F. No. 21(3)/2019 -SP-I of the Ministry of Consumer Affairs, Food & Public 
Distribution, Department of Food & Public Distribution of 18 March 2020 to demonstrate that the 
FRPs for the 2014 -15 and 2015 -16 sugar seasons have expired and were not  in force at the date of 
the Panel's establishment and that the state of Bihar does not have an SAP.31 
1.14 The complainants respond that India erroneously equates the measures at issue with the legal 
instruments through which the measures are implemented.32 The complainants argue that their 
panel requests identify the measures at issue (as, for example, FRPs, SAPs, and other non -exempt 
domestic support measures) that are consistently imposed by India. According to the complainants, 
the legal instruments id entified in their panel requests are evidence or manifestations of the 
challenged measures.33 According to the complainants, even if some of the legal instruments have 
expired, this does not mean that the measures have ceased to exist.34 Brazil additionall y submits 
that, even assuming arguendo  that certain legal instruments constituted measures and had expired, 
the Panel should still make a finding regarding such measures to prevent their re -introduction and 
circumvention of WTO rules by India.35 
 
29 While India does not refer to the SAP in the state of Bihar in Section IV of its first written submission 
titled "Request for Preliminary Ruling", paragraph 30 of India's first written submission states that " alleged SAP 
for the States of A ndhra Pradesh, Bihar and Tamil Nadu do not fall within the Panel’s terms of reference. " In 
addition, footnote 49 to India's first written submission states that "[t]he State of Bihar does not announce SAP". 
In responding to Panel question No. 2, India poin ts out that " Australia has failed to identify that India has also 
sought to exclude SAP for the state of Bihar ". In light of these statements, we understand India to argue that 
the SAP for the state of Bihar is also outside the Panel's terms of reference. (See India's first written submission, 
para. 30 and fn 4 9 to para. 47; response to Panel question No. 2)  
30 India's first written submission, para. 43 ( referring to Notification from the Ministry of Finance of 14 
November 2018 (Goods and Services Tax Compen sation) (Exhibit IND -5)). 
31 India's first written submission, para. 41 and fn 49 to para. 47 (referring to Communication from the 
Government of India  of 18 March 2020 (Exhibit IND -4)). 
32 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, paras.  28-29; 
Australia's comments regarding India's request for a preliminary ruling, 1 April  2020, paras. 20-21 and 23; 
Guatemala's comments regarding India's request fo r a preliminary ruling , 1 April 2020, para. 10.  
33 Brazil 's comments regarding India 's request for a preliminary ruling, 1 April 2020 , paras. 30 -31; 
Australia's comments regarding India's request for a preliminary ruling , 1 April 20 20, paras. 21-22; Guatema la's 
comments regarding India's request for a preliminary ruling , 1 April 2020 , paras. 15 -17. 
34 Australia's comments regarding India's request for a preliminary ruling , 1 April 20 20, paras.  12-13; 
Guatemala's comments regarding India's request for a prelim inary ruling , 1 April 2020 , para. 23. 
35 Brazil 's comments regarding India 's request for a preliminary ruling, 1 April 2020 , paras. 39 -46. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1.15 Brazil and Australia point out that the Communication from the Government of India of 
18 March 2020 , which India refers to in support of its assertion that certain measures have expired, 
was prepared on 18 March 2020, i.e. one day before India submitted its fir st written submission and 
the preliminary ruling request, and "is nothing more than [an] unsupported assertion".36 Guatemala 
submits that the Communication reflects India's erroneous view that  a legal instrument is "'no 
longer in force' when payments unde r the relevant instruments have been fully made by the 
Government to sugar mills, or when sugar mills have no pending dues vis-à-vis sugarcane 
farmers".37 
1.16 India's request for a preliminary ruling and the complainants' counter -arguments raise the 
issue of the relationship between measures and legal instruments. Thus, we start by examining 
whether the elements in the complainants' panel requests identified by India are, as India argues, 
measures that have expired. In doing so, we will examine the complai nants' panel requests, on their 
face, read as a whole, and on the basis of the language used.38 
1.17 As a preliminary observation, we note Brazil's argument that India's selection of elements in 
the complainants' panel requests, which India considers to be  measures that have expired, is 
somewhat inconsistent. India does not refer to all the elements in the complainants' panel requests 
that have expired. Rather, as Brazil points out, "[w]hile India objects to Panel review of certain legal 
instruments in some  sugar seasons, it does not object to review of other instruments pertaining to 
the same  sugar season, or to equivalent instruments in all seasons."39 Indeed, while India argues 
that FRPs for the sugar seasons 2014 -15 and 2015 -16 are outside the Panel's te rms of reference, 
India does not take issue with the FRPs for the sugar seasons 2016 -17 and 2017 -18. Likewise, India 
considers to be outside the Panel's terms of reference the SAPs provided by the states of Haryana 
and Punjab for the sugar seasons 2014 -15, 2015-16, 2017 -18, but not for the sugar 
season  2016-17. In response to the complainants' argument regarding this alleged inconsistency in 
its arguments, India states that it does not take issue with the Panel's terms of reference with 
respect to the measu res concerning the 2018 -19 sugar season.40 
1.18 We now turn to examine how the elements identified by India are reflected in each of the 
complainants' panel requests.  
1.3.1  Brazil's panel request  
1.19 Sections II and III of Brazil's panel request are titled "Domestic Support Measures for 
Sugarcane and Sugar" and "Export Subsidies Pertaining to Sugar and Sugarcane", respectively. 
Section II of Brazil's panel request, titled "Domestic Support Measures for  Sugarcane and Sugar", 
identifies "[t]he domestic support measures and programs for sugarcane and sugar" as, inter alia :  
 8. Federal -level domestic support for sugarcane  in the form of a mandatory minimum 
"Fair and Remunerative Price" that Indian sugar mil ls are required to pay sugarcane 
producers for any production delivered to the mill. This domestic support is provided 
under, including but not limited to, the following legal instruments:  
 … 
9. State -level domestic support for sugarcane  in the form of a mandatory minimum 
"State Advised Price" that sugar mills located in the respective Indian State are required 
to pay sugarcane producers in that State for any production delivered to the mill. For 
 
36 Brazil 's comments regarding India 's request for a preliminary ruling, 1 April 2020 , para. 40 (referring 
to Exhibit I ND-4). See also Australia's comments regarding India's request for a preliminary ruling , 1 April 20 20, 
para. 33.  
37 Guatemala's comments regarding India's request for a preliminary ruling , 1 April 2020 , para.  27. 
38 Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.13 (quoting 
Appellate  Body Report, EC – Fasteners (China) , para.  562 (fn omitted)) . 
39 Brazil 's comments regarding India 's request for a preliminary ruling, 4 May 2020, para. 9.  (fns omitted, 
emphasis original)  
40 According to India, the fact that these measures were in existence at the time of the Panel's 
establishment has no consequence for those measures that India has identified to have expired at the time of 
the establishmen t of the Panel. (India's response to Panel question No. 2, p. 6)  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  each of the identified States, this domest ic support is provided under, including but not 
limited to, the following legal instruments:  
… 
11. Federal -level and State -level domestic support for sugarcane and sugar  in the form 
of various measures by the Federal and State governments in India to supp ort the 
production of sugarcane and sugar under, including but not limited to, the following 
legal instruments[.]41 
1.20 We understand that the underlined parts refer to what Brazil considers to be the measures at 
issue. India does not take issue with the overall description of the measures indicated above. The 
identification of each of these measures is followed by a list of legal instruments that implement 
them.42 The elements in the complainants' panel requests identified by India as "measures" that 
have expired are listed in Brazil's panel request under the rubric of "legal instruments" in which the 
relevant measure is allegedly reflected.  
1.21 As noted, India identifies certain elements in the complainants' panel requests as "measures 
notifying the FRP for the sugar seasons 2014 -15 and 2015 -16" that have expired. Brazil's panel 
request classifies the legal instruments that reflect the federal -level domestic support for sugarcane 
in the form of an FRP into three categories: (i) the legal basis for the FRP  (Essential Commodities 
Act (1955) and Sugarcane (Control) Order (1966)43; (ii) annual communications fixing the FRP44; 
and (iii) notifications fixing the FRP to be paid for sugarcane on a mill -specific basis.45 
Communications introducing the FRP for the s ugar seasons 2014-15 and 2015 -16 are listed as legal 
instruments under the second category, i.e. annual communications fixing the FRP.46 Accordingly, 
as regards the FRP, the elements that India identifies as "measures" that have expired are identified 
in Brazil's panel request as "legal instruments" that reflect the federal -level domestic support for 
sugarcane in the form of an FRP.  
1.22 India further identifies SAPs with respect to certain states and for certain sugar seasons as 
"measures" that have expired.47 As noted, the relevant measure identified in Brazil's panel request 
is the state -level domestic support for sugarcane in the form o f an SAP.48 According to Brazil's panel 
request, the legal instruments that reflect this measure include, inter alia , the: (i) SAP with respect 
to the state of Andhra Pradesh including for the sugar seasons 2015 -16 and 2016 -1749; (ii) SAP with 
respect to t he state of Bihar50; (iii) SAP with respect to the state of Haryana for the sugar seasons 
2014-15, 2015 -16, and 2017 -1851; (iv) SAP with respect to the state of Punjab for the sugar seasons 
2014-15, 2015 -16, and 2017 -1852; (v) SAP with respect to the state  of Tamil Nadu for the sugar 
seasons 2014 -15, 2015 -16, and 2017 -1853; and (vi) SAP with respect to the state of Uttar Pradesh 
for the sugar season 2015 -16.54 Consequently, as regards the SAPs, the elements that India 
identifies as "measures" that have expi red are identified in Brazil's panel request as "legal 
instruments" implementing the SAPs in certain states for certain sugar seasons.  
1.23 As regards the Scheme for Extending Soft Loan to Sugar Mills for the 2014 –15 sugar season, 
it is listed as a legal i nstrument implementing the measure identified as federal -level and state -level 
domestic support for sugarcane and sugar.55 With respect to the purchase tax remission schemes, 
 
41 Request for the establishment of a panel by Brazil, WT/DS579/7 (Brazil's panel request), paras. 8, 9, 
and 11. (underlining original)  
42 These legal instruments are identified by reference to  their title, as well as, in most cases, the date of 
adoption and the issuing authority.  
43 Brazil's panel request, para s. 8.a and b.  
44 Brazil's panel request, para. 8.c . 
45 Brazil's panel request, para. 8. d. 
46 Brazil's panel request, para. 8.c.  
47 See para. 1.12 above.  
48 Brazil's panel request, para. 9.  
49 Brazil's panel request, para. 9.a.  
50 Brazil's panel request, para. 9.b.  
51 Brazil's panel request, para. 9. d. 
52 Brazil's panel request, para. 9. h. 
53 Brazil's panel request, para. 9. i. 
54 Brazil's panel request, para. 9. l. 
55 Brazil's panel request, para. 11.b.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  Brazil's panel request refers only to the one granted by the state of Andhra Prad esh.56 Brazil's panel 
request lists the purchase tax remission scheme of Andhra  Pradesh as a legal instrument 
implementing federal -level subsidized loans for the production of sugarcane or sugar.57 
1.24 With regard to the alleged export subsidies for sugar, we recall that India identifies the Scheme 
for Extending Production Subsidies to Sugar Mills for the sugar season 2015 -16 and the Raw Sugar 
Export Incentive Scheme for the 2014 –15 sugar season as expir ed "measures". We note that Section 
III of Brazil's panel request, titled "Export Subsidies Pertaining to Sugar and Sugarcane", identifies 
as measures, inter alia , federal -level export subsidies pertaining to sugar or sugarcane.58 This is 
followed by an il lustrative list of legal instruments that reflect this measure, which includes the 
Scheme for Extending Production Subsidies to Sugar Mills for the sugar season 2015 -16.59 Finally, 
we note that Brazil's panel request does not refer to Raw Sugar Export Ince ntive Scheme for the 
2014–15 sugar season.  
1.25 In light of the above, we do not agree with India that the elements in Brazil's panel request 
identified by India constitute the "measures" challenged by Brazil. Rather, our examination of Brazil's 
panel requ est reveals that the elements identified by India have been presented in Brazil's panel 
request as legal instruments containing the challenged measures.  
1.26 The fact that some of these legal instruments may have expired does not mean that the Panel 
cannot  rely on them as evidence of the existence of the measures identified in Brazil's panel request. 
As noted above, a panel enjoys a margin of discretion in determining the relevance and probative 
value of a piece of evidence that expired before its establish ment.60 In any event, it is the measures 
at issue as identified in the panel request, not the legal instruments containing such measures, that 
define the terms of reference of a panel. In this regard, we note that India does not claim that any 
of the measu res identified in Brazil's panel request are outside the Panel's terms of reference.  
1.27 Consequently, we reject India's argument that the elements in Brazil's panel request identified 
by India fall outside the Panel's terms of reference.  
1.3.2  Australia's panel request  
1.28 Sections II and IV of Australia's panel request are titled "Domestic support for sugarcane and 
sugar" and "Export subsidies for sugar and sugarcane", respectively. Section II of Australia's panel 
request identifies " the speci fic measures through which India provides domestic support in favour of 
producers of sugarcane and sugar".61 This is followed by a list of eight measures, which include: 
(i) "[f]ederal -level domestic support for sugarcane provided through a federal adminis tered price, 
the 'Fair and Remunerative Price' (FRP) "62; (ii) " [s]tate -level domestic support for sugarcane 
provided through a state administered price, the 'State Advised Price' (SAP) "63; and (iii) other 
non-exempt domestic support measures (including fed eral-level support through subsidised loans 
and state -level support involving tax rebates or exemptions).64 India does not take issue with the 
overall description of the measures indicated above. Annex A to Australia's panel request contains a 
"List of ins truments and documents reflecting the measures at issue".65  
1.29 With respect to the elements in the complainants' panel requests that India identifies as 
"measures notifying the FRP for the sugar seasons 2014 -15 and 2015 -16" that have expired, we 
note th at those elements are listed as legal instruments implementing the FRP identified in 
 
56 As noted by India, Brazil has not put forward any specific arguments with respect to the purchase tax 
remission schemes. ( India's comments regarding its request for a preliminary ruling , 27 April , para.  39) 
57 Brazil's  panel request, para. 11.d.  
58 Brazil's panel request, para. 14.  
59 Brazil's panel request, para. 14.a.  
60 See para. 1.10 above.  
61 Request for the esta blishment of a panel by Australia, WT/DS580/7 (Australia's panel request), para.  7. 
62 Australia's panel request, para. 8. (underlining original)  
63 Australia's panel request, para. 9. (underlining original)  
64 This category comprises six measures listed in p aragraphs 11 -15 of Australia's panel request. (See 
Australia's panel request, paras. 11 -15) We note that, like in that of Brazil, the underlined parts in Australia's 
panel request refer to what Australia considers to be the measures at issue.  
65 Annex A to  Australia's panel request, paras. 1 -8. These instruments are identified by reference to their 
title, as well as, in most cases, the date of adoption and the issuing authority . WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  paragraph  1 of Annex  A to Australia's panel request.66 Similar to that of Brazil, Australia's panel 
request classifies the legal instruments that reflect the federal -level domestic support for sugarcane 
in the form of an FRP into three categories: (i) the legal basis for the FRP (the Essential Commodities 
Act (1955) and Sugarcane (Control) Order (1966))67; (ii) annual communications fixing the FRP68; 
and (iii) notifications  fixing the FRP to be paid on a mill -specific basis.69 Communications introducing 
the FRP for the sugar seasons 2014-15 and 2015 -16 are listed as legal instruments under the second 
category, i.e. annual communications fixing the FRP.70 
1.30 With respect to the SAPs for certain states in certain sugar seasons, which India identifies as 
"measures" that have expired, we note that paragraph 2 of Annex A to Australia's panel request 
contains the list of legal instruments implementing the state -level domestic support in the form of 
SAPs.71 The elements India identified are listed in Australia's panel request among the legal 
instruments implementing the SAPs. These are the: (i) SAP with respect to state of Andhra  Pradesh 
including for the sugar seaso ns 2015 -16 and 2016 -1772; (ii) SAP with respect to the state of Bihar73; 
(iii) SAP with respect to the state of Haryana for the sugar seasons 2014 -15, 2015 -16, and 
2017-1874; (iv) SAP with respect to the state of Punjab for the sugar seasons 2014 -15, 2015 -16, 
and 2017 -1875; (v) SAP with respect to the state of Tamil Nadu for the sugar seasons 2014 -15, 
2015-16, and 2017 -1876; and (vi) SAP with respect to the state of Uttar Pradesh for the sugar season 
2015-16.77 
1.31 With respect to the Scheme for Extending Soft Loan to Sugar Mills for the 2014 –15 sugar 
season, we note that it is listed among "instruments and documents" that reflect the measure that 
Australia identified as "[f]ederal -level domestic support for sugarcane and sugar provided through 
subsidised loans".78 
1.32 With respect to the purchase tax remission schemes of Andhra Pradesh, Bihar, Maharashtra, 
Telangana, and Uttar Pradesh, we note that they are listed among the "instruments and documents" 
implementing the measure identified as "[s]ta te-level domestic support for sugarcane and sugar".79 
1.33 With regard to the alleged export subsidies for sugar, we note that Section IV of Australia's 
panel request, titled "Export subsidies for sugar and sugarcane", identifies the measures at issue as 
"[f]ederal -level measures pertaining to sugar or sugarcane which provide subsidies contingent upon 
export performance , through, operating individually, collectively, or in combination with each 
other".80 This is followed by a list of five categories of meas ures.81 Australia's panel request further 
 
66 Annex A to Australia's panel request, para. 1(c)(iv) -(v).  
67 Annex A to Austr alia's panel request, paras. 1(a) and (b).  
68 Annex A to Australia's panel request, para. 1(c).  
69 Annex A to Australia's panel request, para. 1(d).  
70 Annex A to Australia's panel request, para. 1(c)(iv) -(v).  
71 Annex A to Australia's panel request, para. 2.  
72 Annex A to Australia's panel request, para . 2(a)(ii). 
73 Annex A to Australia's panel request, para. 2(b).  
74 Annex A to Australia's panel request, para. 2(c)(iv) and (v). We note that paragraph 2(c)(iv) of Annex  A 
refers only to the SAPs in the State of Haryana for the sugar seasons 2014 -15, 2015 -16, and 2016 -17. Paragraph  
2(c)(v) of Annex A refers to "any other documents, state -level legal instruments, including successor 
instruments, and any amendments thereto, that provide for a  mandatory minimum price for sugarcane that is 
higher than the FRP in the State of Haryana for  the [sugar season] … 2017 -18".  
75 Annex A to Australia's panel request, para. 2(f)(iii) and (iv). We note that paragraph 2(f)(iii) of Annex  A 
refers only to the SAPs in the State of Punjab for the sugar seasons 2014 -15, 2015 -16, and 2016 -17. Paragraph 
2(f)(iv) of Annex A refers to " any other documents, state -level legal instruments, including successor 
instruments, and any amendments thereto, that provide for a mandatory minimum price for sugarcane that is 
higher than the FRP in the State of Punjab  for the  [sugar season] 2017 -18".  
76 Annex A to Australia's panel request, para. 2(g)(v), (vi) and (viii). We note that paragraph 2(g)(viii) of 
Annex A refers to " any other documents, state -level legal instruments, including successor instruments, in the 
State of Tamil Nadu that provide for a mandatory minimum price for sugarcane that is higher than the FRP during 
the [sugar season] … 2017 -18".  
77 Annex A to Australia's panel request, para. 2(j)(iv).  
78 Annex A to Australia's panel request, para. 5(b).  
79 Annex A to Australia's panel request, paras. 8(a)(i), 8(b)(i) and (iv), 8(e)(i), 8(g)(i), 8(h)(i), (ii) 
and (iv). 
80 Australia's panel request, para. 19. (underlining original)  
81 Australia's panel request , para. 19(a) -(e). (underlining original)  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  indicates that "[t]hese measures are reflected in, but not limited to, the instruments and documents 
identified in paragraph 9 of Annex A to this request."82 
1.34 Paragraph 9 of Annex A to Australia's panel request  identifies the Scheme for Extending 
Production Subsidies to Sugar Mills for the sugar season 2015 -16 among the instruments and 
documents that contain production subsidies contingent upon export performance.83 
1.35 Finally, we observe that the Raw Sugar Ex port Incentive Scheme for the 2014 –15 sugar 
season is listed among the instruments and documents that implement the measure identified as 
"[f]ederal -level domestic support for sugarcane and sugar provided through financial assistance 
towards internal trans port, freight, handling and other charges on export ".84 
1.36 In light of the above, we do not agree with India that the elements in Australia's panel request 
identified by India constitute "measures". Rather, our examination of Australia's panel request 
reveals that the elements identified by India have been presented in Australia's panel request as 
instruments containing the measures at issue.  
1.37 For the reasons outlined in paragraph 1.26 above, we reject India's argument that the 
elements in Australia's panel request identified by India fall outside the Panel's terms of reference.  
1.3.3  Guatemala's panel request  
1.38 Sections II and III of Guatemala's panel request are titled "India's domestic support measures 
in favour of sugarcane producers and sugar producers" and "India's measures pertaining to sugar 
or sugarcane which provide subsidies contingent upon export performance", respectively. Section II 
identif ies eight measures "through which India provides domestic support in favour of sugarcane 
producers and sugar producers".85 These measures include: (i) " [f]ederal -level domestic support in 
the form of a federal administered price, the 'Fair and Remunerative  Price' ('FRP') "86; 
(ii) "[s]tate -level domestic support for sugarcane in the form of a state administered price, the 'State 
Advised Price' ('SAP') "87; and (iii) other non -exempt domestic support measures (including federal -
level support through subsidised  loans and state -level support involving tax exemptions).88 India 
does not take issue with the overall description of the measures indicated above. Guatemala's panel 
request contains an Annex titled "List of instruments and documents containing the measure s at 
issue".  
1.39 With respect to the elements in the complainants' panel requests that India identifies as 
"measures notifying the FRP for the sugar seasons 2014 -15 and 2015 -16" that have expired, we 
note that those elements are listed in the Annex to Gua temala's panel request as "instruments and 
documents" that reflect the FRP.89 Similar to those of Brazil and Australia, Guatemala's panel request 
classifies the legal instruments that reflect the federal -level domestic support for sugarcane in the 
form of an FRP into three categories: (i) the legal basis for the FRP (the Essential Commodities Act 
(1955) and Sugarcane (Control) Order (1966))90; (ii) annual communications fixing the FRP91; and 
(iii) notifications fixing the FRP to be paid on a mill -specific b asis.92 Communications introducing the 
FRP for the sugar seasons 2014 -15 and 2015 -16 are listed as legal instruments under the second 
category, i.e. annual communications fixing the FRP.93  
 
82 Australia's panel request, para. 20.  
83 Annex A to Australia's panel request, paras. 9 and 9(b)(iii).  
84 Annex A to Australia's panel request, para. 7(b). (underlining original); Australia's panel request, 
para. 14. 
85 Request for the establishment of a panel by Guatemala, WT/DS581/8 (Guatemala's panel request), 
p. 2. 
86 Guatemala's panel request, p. 2, para. 1. (underlining original)  
87 Guatemala's panel request, p. 2, para. 2. (underlining original)  
88 Guatemala's pa nel request, p. 2, paras. 4 -8. We note that, like in those of Brazil and Australia, the 
underlined parts in Guatemala's panel request refer to what Guatemala considers to be the measures at issue.  
89 Annex to Guatemala's panel request, para. 1(c)(iv) and (v ). 
90 Annex to Guatemala's panel request, para. 1(a) and (b).  
91 Annex to Guatemala's panel request, para. 1(c)  
92 Annex to Guatemala's panel request, para. 1(d).  
93 Annex to Guatemala's panel request, para. 1(c).  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1.40 With regard to the SAPs for certain states in certain sugar seasons,  which India identifies as 
"measures" that have expired, we note that paragraph 2 of the Annex to Guatemala's panel request 
contains the list of instruments and documents that reflect the state -level domestic support in the 
form of SAPs. The elements ident ified by India are listed in Guatemala's panel request among legal 
instruments implementing the SAPs. These are: (i) SAP with respect to state of Andhra Pradesh 
including for the sugar seasons 2015 -16 and 2016 -1794; (ii) SAP with respect to the state of Bihar95;  
(iii) SAP with respect to the state of Haryana for the sugar seasons 2014 -15, 2015 -16, and 
2017-1896; (iv) SAP with respect to the state of Punjab for the sugar seasons 2014 -15, 2015 -16, 
and 2017 -1897; (v) SAP with respect to the state of Tamil N adu for the sugar seasons 2014 -15, 
2015-16, and 2017 -1898; and (vi) SAP with respect to the state of Uttar Pradesh for the sugar season 
2015-16.99 
1.41 As regards the Scheme for Extending Soft Loan to Sugar Mills for the 2014 –15 sugar season, 
we note that it is listed among "instruments and documents" that reflect the measure that Guatemala 
identified as "[f]ederal -level domestic support for sugarcane and sugar provided through subsidised 
loans" .100 
1.42 With respect to the purchase tax remission schemes of certain states that India has identified 
as expired measures, we note that paragraph 8 of the Annex to Guatemala's panel request identifies 
the purchase tax remittance schemes of certain states as "instruments and documents" that reflect 
the measure identi fied as " [s]tate -level domestic support for sugarcane and sugar ".101 
1.43 Section III.A of Guatemala's panel request identifies measures pertaining to sugar or 
sugarcane through which India provides subsidies contingent upon export performance as, inter ali a, 
"[f]ederal -level measures pertaining to sugar or sugarcane that provide subsidies contingent upon 
export performance ".102 Paragraph 9 of the Annex to Guatemala's panel request sets out an 
illustrative list of the legal instruments and documents that refl ect the measures at issue.  
1.44 With respect to the Scheme for Extending Production Subsidies to Sugar Mills for the sugar 
season 2015 -16, we note that the Annex to Guatemala's panel request refers to it as one of the 
instruments that reflect the "[f]edera l-level measures pertaining to sugar or sugarcane that provide 
subsidies contingent upon export performance".103 
1.45 Finally, with respect to the Raw Sugar Export Incentive Scheme for the 2014 –15 sugar season, 
we note that paragraph 11 of Guatemala's panel  request refers to the relevant measures at issue as 
"[f]ederal -level assistance and export incentives , including, but not limited to, the instruments 
identified in paragraph 11 of the Annex to this request."104 Thus, the panel request identifies the 
measur e at issue as "federal -level assistance and export incentives" and refers to the elements listed 
in paragraph 11 of the Annex as "instruments", which we interpret to mean instruments that contain 
the measure. Paragraph 11 of the Annex to Guatemala's panel request, in turn, reads, in relevant 
part: 
 11. Federal -level assistance and export incentives , including under Sugar Rules / Sugar 
Development Fund (SDF) Rules rule 20B as amended (also referred to as the Raw Sugar 
Export Incentive Scheme), including, but not limited to the following: …105 
1.46 The text of this paragraph of the Annex to Guatemala's panel request confirms our 
understanding of paragraph 11 of the panel request. Like the panel request itself, the Annex 
identifies the measure at i ssue as "federal -level assistance and export incentives", and states that 
 
94 Annex to Guatemala's panel request, para. 2( a)(ii) and (iii).  
95 Annex to Guatemala's panel request, para. 2(b).  
96 Annex to Guatemala's panel request, para. 2(d)(vi) -(vii). 
97 Annex to Guatemala's panel request, para. 2( h)(v). 
98 Annex to Guatemala's panel request, para. 2(i)(v)  and (vii) -(viii).  
99 Annex to Guatemala's panel request, para. 2( l)(iv). 
100 Annex to Guatemala's panel request, para. 5(b). (underlining original)  
101 Annex to Guatemala's panel request, para. 8(a)(i), (c)(i), e(i), (g)(i) and (h)(i) -(ii), (iv), and (vi). 
(underlining original)  
102 Guatemala's panel request, para. 9. (underlining original)  
103 Annex to Guatemala's panel request, para. 9(b)(iv). (underlining omitted)  
104 Guatemala's panel request, para. 11. (underlining original)  
105 Annex to Guatemala's panel request, para. 11. (footnote s omitted) (underlining original)  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  this includes the incentives provided, among others, under the Raw Sugar Export Incentive Scheme. 
This introductory language in paragraph 11 of the Annex is followed by a list of sev en legal 
instruments that allegedly contain the federal -level assistance and export subsidies maintained by 
India. Guatemala has identified the relevant measure at issue as "[f]ederal -level assistance and 
export incentives" and referred to the Raw Sugar Ex port Incentive as a legal instrument containing 
this measure.106 
1.47 In light of the above, we do not agree with India that the elements in Guatemala's panel 
request that India has identified constitute "measures". Rather, our examination of Guatemala's 
panel request reveals that the elements identified by India have been presented in Guatemala's 
panel request as instruments containing the measures at issue.  
1.48 For the reasons outlined in paragraph 1.26 above, we reject India's argument  that the 
elements in Guatemala's panel request identified by India fall outside the Panel's terms of reference.  
1.4 Conclusion  
1.49 Our review of the complainants' panel requests demonstrates that the elements in the panel 
requests, which India refers to as "measures", are in fact legal instruments that, in the view of the 
complainants, contain the measures at issue. We therefore reject India's request to find that the 
elements it has identified fall outside our terms of reference. We will examine the relevance and 
probative value of these legal instruments in assessing the complainants' claims, in making an 
objective assessment in accordance with Article 11 of the DSU.  
 
 
 
106 We further note that elements of the Raw Sugar Export Incentive Scheme for the 2014 –15 sugar 
season  have been identified as instruments implementing the measure at issue. (Annex to Guatemala's panel 
request, para. 11(c) -(d)) WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  ANNEX E -2 
1  PRELIMINARY RULING  BY THE PANEL  CONCERNING INDIA'S  MARKETING AND  
TRANSPORTATION SCHEME  
1.1 Introduction  
1.1 As noted in Annex E -1, in its first written submission, India sought a preliminary ruling by the 
Panel that certain measures challenged by the complainants in their panel requests fall outside the 
Panel's terms of reference because they either expired befo re, or were enacted after, the Panel's 
establishment.1 As part of its request for a preliminary ruling, India argued that the Marketing and 
Transportation Scheme came into existence after the establishment of the Panel and therefore is 
outside the Panel's  terms of reference.2  
1.2 On 9 November 2020, the Panel issued the first part of its preliminary ruling regarding the 
allegedly expired measures, including the Panel's reasoning  to the parties and third parties . On 
14 December  2020, the Panel issued the second part of its preliminary ruling regarding the 
Marketing and Transportation Scheme to the parties. The Panel found that the Marketing and 
Transportation Scheme fell within its terms of reference and informed the parties that the reasoning 
for the ruling would be included in its Interim Report.  
1.3 This section contains the reasoning for the second part of the Panel's preliminary ruling. We 
first summarize the parties' arguments. We then address India's argument that  a panel's terms of 
reference are limited to the measures that were in existence at the time of the panel's establishment. 
Thereafter, we assess whether the Marketing and Transportation Scheme is within the Panel's terms 
of reference. In this context we examine whether: (i) the co mplainants' panel requests are broad 
enough to encompass the Marketing and Transportation Scheme; (ii) the Marketing and 
Transportation Scheme is of the same essence as the assistance schemes explicitly referred to in 
the complainants' panel requests; and (iii) inclusion of the Marketing and Marketing and 
Transportation Scheme in the Panel's terms of reference would contribute to the prompt settlement 
of, and securing a positive solution to, the present disputes pursuant to Articles 3.3 and 3.7 of the 
DSU. 
1.2 Arguments of the parties  
1.4 India argues that since the Marketing and Transportation Scheme came into existence after 
the establishment of the Panel, it is not within the Panel's terms of reference.3 India observes that 
the Marketing and Transportat ion Scheme challenged by the complainants "was introduced by the 
Government of India on 12 September 2019 for the sugar season 2019 -20 (i.e. 1st October 2019 to 
30th September 2020)", while the Panel was established on 15 August 2019.4  
1.5 India notes th at a panel's terms of reference are limited to the measures that were in existence 
at the time of the panel's establishment.5 In India's view, there is no legal basis in the text of the 
DSU to include in a panel's terms of reference measures that were int roduced after the panel's 
establishment.6 In response to the complainants' arguments regarding exceptions to this general 
rule identified in previous disputes, India submits that such exceptions do not apply in the present 
 
1 India's first written submission, para. 32; comments regarding its request for a preliminary ruling , 
27 April 2020, para. 4.  
2 India's first written submission, para. 44.  
3 India's first writte n submission, para. 44; comments regarding its request for a preliminary ruling , 
27 April 2020, para. 60.  
4 India's first written submission, para. 44 (referring to Notification of 1 2 September 2019, 
(Exhibit  JE-114)); comments regarding its request for a preliminary ruling , 27 April 2020, para. 44.  
5 India's first written submission, para. 46; response to Panel question No. 9.  
6 India's comments regarding its request for a preliminary ruling , 27 April 2020, para . 14; response to 
Panel question No. 12.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  disputes.7 In this regard, India submits three main arguments based on th e criteria developed in the 
disputes referred to by the complainants.  
1.6 First, India argues that the Marketing and Transportation Scheme is not a successor or 
amendment to the measures identified in the complainants' panel requests.8 In this regard, India 
notes, first, that a panel may "examine a legal instrument enacted after the establishment of the 
panel that amends a measure identified in the panel request".9 However, in India's view, the 
Marketing and Transportation Scheme does n ot amend any of the measures identified in the 
complainants' panel requests. India further submits that the fact that the Marketing and 
Transportation Scheme was adopted after the adoption of certain measures identified in the 
complainants' panel requests does not necessarily make it a "successor" or an "amendment" of those 
measures.10 
1.7 Second, India contends that the Marketing and Transportation Scheme is not of the "same 
essence" as those measures  identified in the complainants' panel requests.11Accord ing to India the 
Marketing and Transportation Scheme is a measure that is separate and distinct from the measures 
identified in the complainants' panel requests, in terms of: (i) the nature of the assistance provided; 
(ii) eligibility criteria for obtainin g that assistance; and (iii) the amount of assistance provided and 
the methodology to determine such amount.12 
1.8 With respect to the nature of the assistance, India observes that the Buffer Stock Scheme was 
introduced with a view to offsetting the cost o f cane incurred by sugar mills and reimbursing the 
carrying cost of maintenance of buffer stocks by sugar mills.13 By contrast, India underscores that 
the Marketing and Transportation Scheme "has been introduced specifically with the view of 
providing WTO -consistent payments to offset transport and marketing costs incurred by sugar mills 
carrying out the export of sugar".14 With respect to the eligibility criteria, India points out that the 
Production Assistance Scheme requires mills with ethanol production  capacity to have supplied a 
certain amount of ethanol to oil marketing companies. In addition, according to India, eligibility for 
the Buffer Stock Scheme is dependent on the actual maintenance of buffer stock by mills during the 
designated period. By con trast, India points out that, under the Marketing and Transportation 
Scheme, eligibility requirements "are set so as to cover sugar mills that have actually incurred … 
marketing and transport expenses by exporting sugar in accordance with their MAEQs".15 With 
respect to the amount of assistance, India submits that, unlike other schemes, which provide 
different amounts of assistance calculated on the basis of the amount of sugar cane crushed, the 
Marketing and Transportation Scheme "provides assistance towar ds marketing and transport costs 
at a specified rate".16 
1.9 Third, India maintains that including the Marketing and Transportation Scheme in the Panel's 
terms of reference is not necessary to secure a positive solution to the dispute because the Marketing  
and Transportation Scheme is not a recurring measure. In India's view, if any of the measures 
alleged to constitute export subsidies in the present disputes are found to be WTO -inconsistent, 
subsequently adopted measures that share similar characteristics  may be appropriately addressed 
during the compliance stage of these disputes.17 
 
7 India's comments regarding its request for a preliminary ruling , 27 April 2020, para . 15. 
8 India's comments regarding its request for a preliminary ruling , 27 April 2020, para s. 47-50.  
9 India's comments regard ing its request for a preliminary ruling , 27 April 2020, para. 47 (referring to 
Appellate Body Report, Chile – Price Band System ). (emphasis original)  
10 India's comments regarding its request for a preliminary ruling , 27 April 2020, para. 49.  
11 India's com ments regarding its request for a preliminary ruling , 27 April 2020, para s. 51-56. 
12 India's comments  regarding its request for a preliminary ruling , 27 April 2020, para. 52.  
13 India's comments  regarding its request for a preliminary ruling , 27 April 2020,  para. 53.  
14 India's comments  regarding its request for a preliminary ruling , 27 April 2020, para. 53. India notes 
that paragraph 3(i)(a) of the Marketing and Transportation Scheme  envisages payment s to sugar mills at a 
specified rate for expenses incurred  for the marketing, handling, quality up -gradation, debagging, re -bagging , 
and other processing costs of sugar. India further notes that paragraph 3(i)(b) envisages payment s for internal 
transport and freight charges including loading, unloading, and fobbing , at a specified rate, while paragraph 
3(i)(c) provides for payments to sugar mills at a specified rate for ocean freight costs incurred a s a result of 
shipment s from Indian p orts to destination countries. (Ibid . referring to Notification of 12 September 2019, 
(Exhibit JE -114))  
15 India's comments  regarding its request for a preliminary ruling , 27 April 2020, para. 54.  
16 India's comments  regarding its request for a preliminary r uling, 27 April 2020, para. 55.  
17 India's comments  regarding its request for a preliminary ruling , 27 April 2020, paras.  57-59. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1.10 In response to India's arguments, the complainants submit that the Appellate Body in 
EC - Chicken Cuts  set out "a general rule" that a panel's terms of reference encompass measures 
that are in existence at the time of the panel's establishment.18 The complainants argue, however, 
that this does not prevent a measure adopted after the panel's establishment f rom falling within the 
panel's terms of reference.19 Referring to the criteria established in past cases for the inclusion in 
the panel's terms of reference of measures that postdate a panel's establishment, the complainants 
assert that the Marketing and T ransportation Scheme falls within this Panel's terms of reference 
because: (i)  the texts of the complainants' respective panel requests are broad enough to encompass 
the Marketing and Transportation Scheme20; (ii) the Marketing and Transportation Scheme is  of the 
same essence as the export subsidies identified in the complainants' panel requests21; and (iii) the 
inclusion of the Marketing and Transportation Scheme in the Panel's terms of reference is necessary 
for the prompt settlement of, and to secure a p ositive solution to, the disputes.22 
1.11 Regarding the first criterion, the complainants point out that  their panel requests define the 
measures at issue as federal -level export subsidies pertaining to sugar and sugarcane, which is 
followed by a list of l egal instruments that implement them, including any amendments, related, 
successor, replacement, or implementing instruments.23 In the complainants' view, the scope of 
their panel requests is therefore broad enough to encompass the Marketing and Transporta tion 
Scheme.24 
1.12 Regarding the second criterion, the complainants argue that the Marketing and Transportation 
Scheme is, in essence, the same as the measures identified in the complainants' panel requests.25 
In this regard, Brazil submits that the Marke ting and Transportation Scheme is of the same essence 
as the Scheme for Assistance to Sugar Mills for the 2018 -19 sugar season. According to Brazil, "both 
policies share the same policy purpose, and the same design, structure and impact."26 In addition, 
Brazil submits that the Marketing and Transportation Scheme "shares the same policy objective  as 
all the other export subsidies that Brazil identified in its panel request".27 In Brazil's view, "India 
tries to hide the fundamental sameness of the [Marketing and Transportation] Scheme and the other 
export subsidies by atomizing the analysis and focusing on immaterial differences".28 
1.13 Australia submits that the Marketing and Transportation Scheme has the same purpose, and 
exhibits the same design and structural features, as the subsidy programmes that Australia listed in 
 
18 Brazil's comments  regarding its request for a preliminary ruling , 1 April 2020, para. 15; Australia's 
comments  regarding India 's request for a preliminary ruling , 1 April 2020, para. 54; Guatemala's comments 
regarding India's request for a preliminary ruling , 1 April 2020, para. 41 (quoting Appellate Body Report, 
EC - Chicken Cuts , para. 156).  
19 Brazil's comments regarding India' s request for a preliminary ruling , 1 April 2020, para. 50; Australia's 
comments regarding India's request for a preliminary ruling , 1 April 2020, para. 55; Guatemala's comments 
regarding India's request for a preliminary ruling , 1 April 2020, paras. 40 -42. 
20 Brazil's comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 60 -63; 
Australia's comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 66 -72; Guatemala's 
comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 45 -55. 
21 Brazil's comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 64 -70; 
Australia's comments  regarding India's request for a preliminary ruling , 1 April 2020, paras. 73 -80; Guatemala's 
comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 56 -58. 
22 Brazil's comments regarding India's request for a preliminary ruling , 1 April 2020, para. 71 -74; 
Australia's comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 81 -83; Guatemala's 
comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 59 -61. 
23 Brazil's comments regarding  India's request for a preliminary ruling, 1 April 2020, para. 61 (referring 
to Brazil's panel request, paras. 14 -16); Australia's comments regarding India's request for a preliminary ruling, 
1 April 2020, paras. 67 -70 (referring to Australia's panel reque st, paras. 18 -20 and para.  9 of Annex A) ; 
comments regarding India's request for a preliminary ruling , 4 May 2020, para. 30; Guatemala's comments 
regarding India's request for a preliminary ruling, 1 April 2020, paras. 46 -51 (referring to Guatemala's panel  
request, para. 9 of Section III.A).  
24 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 60 and  63; 
Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 72; Guatemala's 
commen ts regarding India's  request for a preliminary ruling , 1 April 2020, para. 52.  
25 Brazil's comments regarding India's request for a preliminary ruling , 1 April 2020 , para. 64; Australia's 
comments regarding India's request for a preliminary ruling , 1 April 2020, para. 73; Guatemala's comments 
regarding India's request for a preliminary ruling , 1 April 2020, para. 58.  
26 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 67.  
27 Brazil's comments regarding India's request for a preliminary ruling, 4 May 2020, para. 35. 
(emphasis  original)  
28 Brazil's comments regarding India's request for a preliminary ruling, 4 May 2020, para. 45.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  in its panel request. In particular, Australia points out that eac h of these programmes is "designed 
to achieve the policy purpose of assisting sugar mills to pay down sugarcane price dues by providing 
direct subsidies" and "embod[ies] the same design and structure, exhibiting the same two core 
constituent elements": (i)  a direct payment, which is tied to (ii) an export quota, usually by requiring 
sugar mills to comply with export requirements as an eligibility condition for receiving the payment.29 
To Australia, the Marketing and Transportation Scheme "is merely the late st (albeit renamed) 
iteration of India's sugar export subsidy policy of tying direct payment schemes to an export quota 
program, repeated annually on a seasonal basis".30 Australia maintains that the Panel should focus 
on the core elements of the measure a nd avoid being distracted by India's attempt to draw the 
Panel's focus away from such core elements.31 
1.14 In Guatemala's view, the structure, operation and constituent elements of the subsidies 
identified in Guatemala's panel request and those of the Mar keting and Transportation Scheme are 
the same, and the only notable difference is the titles of the respective programmes.32 Guatemala 
disagrees with India's view that two measures can be of the same essence only if they are identical 
in all respects, incl uding the eligibility requirements that have not been challenged by Guatemala 
and the methodology for calculating the amount of the subsidy.33 
1.15 Regarding the third criterion, the complainants consider that including the Marketing and 
Transportation Sch eme in the Panel's terms of reference is necessary to secure a prompt settlement 
of, and positive solution to, the disputes in accordance with the principles articulated in Articles 3.3 
and 3.7 of the DSU.34 
1.3 Whether measures introduced after a panel's establishment may fall within the 
panel's terms of reference  
1.16 India argues that there is no legal basis in the text of the DSU to include in a panel's terms of 
reference measures introduced after the panel's establishment. The complainants subm it that, in 
certain circumstances, measures enacted after a panel's establishment may fall within the panel's 
terms of reference.  
1.17 Article 6.2 of the DSU reads in relevant part:  
The request for the establishment of a panel shall be made in writing. It  shall 
indicate whether consultations were held, identify the specific measures at issue 
and provide a brief summary of the legal basis of the complaint sufficient to present 
the problem clearly.  
1.18 As described in Annex E -1, the requirements of Article  6.2 of the DSU are "central to the 
establishment of the jurisdiction of a panel"35 in that the panel request governs a panel's terms of 
reference and delimits the scope of the panel's jurisdiction.36 A panel's terms of reference are to 
 
29 Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, paras.  74-75 
(referring to Exhibits JE -74, JE -75, JE -76, JE -77, JE -78, JE -107, JE -108, JE -109, and JE-112).  
30 Australia's comments regarding India's request for a preliminary ruling , 1 April 2020 , para. 80.  
31 Austral ia's comments regarding India's request for a preliminary ruling , 4 May 2020 , para. 64.  
32 Guatemala's comments regarding India's request for a preliminary ruling , 1 April 2020 , para.  57. 
33 Guatemala's comments regarding India's request for a preliminary ruling , 4 May 2020, para. 48. In 
Guatemala 's view , none of these aspects go to the measure's essence. Rather, the essential element of the 
measure is that payments are available to sugar mil ls that export sugar according to export quotas pre -
determined by the Indian Government on a mill -wide basis. (Ibid . para. 49)  
34 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 71 -74; 
comments regarding India's r equest for a preliminary ruling, 4 May 2020, paras. 46 -50; Australia's comments 
regarding India's request for a preliminary ruling, 1 April 2020, paras. 81 -83; comments regarding India's request 
for a preliminary ruling, 4 May 2020, paras. 79 -83; Guatemala 's comments regarding India's request for a 
preliminary ruling, 1 April 2020, paras. 59 -61; comments regarding India's request for a preliminary ruling, 
4 May 2020, paras. 51 -56. 
35 Appellate Body Report, US – Countervailing Measures (China) , para. 4.6.  
36 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.12. See also  
Appellate Body Reports, Korea – Pneumatic Valves  (Japan) , para. 5.4; EC and certain member States – Large 
Civil Aircraft , para. 640; US – Countervailing Measures (C hina), para. 4.6; US – Countervailing and Anti -Dumping 
Measures (China) , para. 4.6.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  examine the measure s and related claims the complainant has raised in its panel request.37 It has 
been observed in past disputes that, as a general rule,  "the measures included in a panel's terms 
of reference must be measures that are in existence at the time of the establi shment of the panel".38 
However, contrary to India's argument, Article 6.2 does not set out an express temporal condition 
or limitation on the measures that can be identified in a panel request. In certain circumstances, 
measures enacted subsequent to the establishment of the panel may fall within its terms of 
reference.39 Thus, measures that are modified during the panel proceedings or introduced after a 
panel's establishment do not a priori  fall outside the panel's terms of reference.  
1.19 A panel may exa mine a measure adopted after the date of the panel's establishment if it 
amends one of the measures explicitly identified in the complainant's panel request, provided that 
the panel request is broad enough to encompass such an amendment and the amendment d oes not 
change the "essence" of the measure identified in the panel request.40 Another factor to be taken 
into account in assessing whether a measure that postdates the panel's establishment falls within 
the panel's terms of reference, is whether excluding  such a measure from the panel's terms of 
reference would be contrary to the objectives of prompt dispute settlement and securing a positive 
solution to disputes, as laid down in Articles 3.3 and 3.7 of the DSU.41  
1.20 In light of the above, we are not co nvinced by India's argument that only measures that were 
in existence at the time of the panel's establishment fall within the panel's terms of reference. We 
find the criteria discussed in previous disputes useful for determining whether the Marketing and 
Transportation Scheme falls within the Panel's terms of reference and will take them into account in 
our analysis.  
1.4 Whether the Marketing and Transportation Scheme is within the Panel's terms of 
reference  
1.21 The parties disagree whether: (i) the texts of the complainants' panel requests are broad 
enough to encompass the Marketing and Transportation Scheme; (ii) the Marketing and 
Transportation Scheme is of the same essence as the alleged export subsidies ident ified in the 
complainants' panel requests; and (iii) the inclusion of the Marketing and Transportation Scheme in 
the Panel's terms of reference is necessary for the prompt settlement of, and securing a positive 
solution to, the present disputes. We examine  each of these issues in turn to determine whether the 
Marketing and Transportation Scheme is within our terms of reference.  
1.4.1  Whether the complainants' panel requests are "sufficiently broad" to encompass the 
Marketing and Transportation Scheme  
1.22 We first assess the content of the complainants' panel requests to determine whether the 
descriptions of the measures identified therein are sufficiently broad to encompass the Marketing 
and Transportation Scheme.  
 
37 See e.g. Appellate Body Report, EC – Selected Customs Matters , para. 131 ("the panel request identifies 
the measures and the claims that a panel will have the authority t o examine and on which it will have the 
authority to make findings"). See also Panel Report, EC – Selected Customs Matters , para. 7.43.  
38 Appellate Body Report, EC – Chicken Cuts , para. 156. See also Panel Reports, US – Renewable  
Energy , para. 7.8 and US – Tariff Measures  (China) , para. 7.35.  
39 Appellate Body Report, EC – Chicken Cuts , para. 156. See also Appellate Body Report, US – Zeroing 
(Japan) (Article 21.5 – Japan) , para. 121 and Panel Reports, US – Renewable Energy , para. 7.8 and US – Tariff 
Measures  (China) , para. 7.35.  
40 Panel Reports, US – Tariff Measures  (China) , para. 7.35; Thailand – Cigarettes (Philippines) 
(Article  21.5 – Philippines) , para. 7.808; Appellate Body Reports, Chile – Price Band System , paras. 136 -144; 
and EC – Selected Customs Matters , para. 184.  
41 Article 3.3 of the DSU reads: " [t]he prompt settlement of situations in which a Member considers that 
any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures 
taken by another Member is essential to the effective functioning of the WTO and the maintenance of a proper 
balance between the rights and obligations of Members." Article 3.7 of the DSU reads, inter alia , "[t]he aim of 
the dispute settlement mechanism is to secure a positive solution to a dispute." (See Panel Reports, 
Argentina  - Footwear (EC) , para. 8.41;  EC – Fasteners (China) , para. 7.34;  Russia – Pigs (EU), para.  7.155; and 
Appellate  Body Report, Chile – Price Band  System , paras. 140 -141). WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1.23 India argues that the Marketing and Transportation Scheme is not an "amendment" or 
"successor" to the measures identified in the complainants' panel requests merely because it was 
enacted subsequent to those measures.42  
1.24 For its part, Brazil submits that the Marketing and Transporta tion Scheme is covered by 
paragraphs 14 and 16 of Brazil's panel request.43 
1.25 Paragraph 13 of Brazil's panel request states that "[t]he export subsidy measures and 
programs pertaining to sugar and sugarcane include, but are not limited to" the list that  follows. The 
following paragraph reads:  
14. Federal -level export subsidies pertaining to sugar or sugarcane  which make the 
provision of financial support contingent upon export performance under, including but 
not limited to, the following legal instrumen ts … [.]44 
1.26 Paragraphs 14.a –14.d then list the "legal instruments" through which individual subsidy 
programmes identified in the request are implemented. Paragraph 14.e reads:  
e. All other Federal -level instruments, including all successor instruments, and any 
amendments thereto, providing Federal -level subsidies contingent on export 
performance during the 2014/15, 2015/16, 2016/17, 2017/18, 2018/19 seasons and 
subsequent seasons.45 
1.27 Paragraph 16 of Brazil's panel request further states:  
16. In addition to the measures identified in paragraphs 14 to 15, the measures covered 
by this request for the establishment of a Panel include any amendments to any of the 
measures listed in paragraphs 14 to 15, above, or related, successor, replacement  or 
implementing measures thereto.46 
1.28 First, we note that the phrase "measures … include, but are not limited to" in paragraph 13 of 
Brazil's panel request leaves the list of the measures at issue open. Paragraph 14 further identifies 
the measures at i ssue broadly as "[f]ederal -level export subsidies pertaining to sugar or 
sugarcane".47 We note that the Marketing and Transportation Scheme, like other alleged export 
subsidies listed in Brazil's panel request, was adopted by the DFPD, a federal agency, an d is therefore 
a measure adopted at the federal level of Government that could be covered by paragraph 14 of the 
panel request. Furthermore, paragraph 16 of Brazil's panel request refers to "any amendments to 
any of the measures listed in paragraphs 14 to 15 … or related, successor, replacement or 
implementing measures thereto". Thus, Brazil's panel request anticipates the possibility of a change 
to the measures listed therein. In our view, the Marketing and Transportation Scheme is covered by 
the terms "an y amendments to … or related, successor, replacement or implementing measures" in 
paragraph 16.  
1.29 As an additional point, we note that the open -ended list of legal instruments implementing 
the alleged federal -level export subsidies in paragraph 14.e wo uld include the instruments 
implementing the Marketing and Transportation Scheme . The Marketing and Transportation Scheme  
is applicable to the 2019 -20 sugar season, which follows the 2018 -19 sugar season, and therefore 
is covered by the terms "during … sub sequent seasons" in paragraph 14 .e of Brazil's panel request.  
This reinforces our view that the Marketing and Transportation Scheme falls within the scope of 
Brazil's panel request.  
 
42 India's comme nts regarding its request for a preliminary ruling, 27 April 2020, para. 49.  
43 Brazil's comments regarding India's request for a preliminary ruling, 1 April, paras. 61 -63; comments 
regarding India's request for a preliminary ruling, 4 May , paras.  30-32. 
44 Brazil's panel request, para. 14.  (underlining  original)  
45 Brazil's panel request, para. 14 .e.  
46 Brazil's panel request, para. 16.  
47 Brazil's panel request, para. 14. ( underlining  omitted)  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1.30 Australia submits that paragraphs 18 -20 of its panel request, as well  as paragraph 9 of 
Annex  A of the panel request, are sufficiently broad to encompass the legal instruments that 
implement the Marketing and Transportation Scheme.48 
1.31 Paragraph 18 of Australia's panel request states:  
18. Pursuant to Article 6.2 of the D SU, Australia identifies below the specific measures 
through which India provides export subsidies for sugar and sugarcane, which are the 
subject of this request. The measures at issue include the following, as well as any 
amending, successor, supplemental , replacement, renewal, extension or implementing 
measures thereto[.]49 
1.32 Paragraph 19 defines the measures at issue as:  
19. Federal -level measures pertaining to sugar or sugarcane which provide subsidies 
contingent upon export performance , through, operating individually, collectively, or in 
combination with each other[.]50  
1.33 Paragraph 20 of the panel request indicates that "[t]hese measures are reflected in, but not 
limited to, the instruments and documents identified in paragraph 9 of Annex A to this request."51 
Paragraph 9 of Annex A of the panel request contains an indicative list of legal instruments through 
which the federal -level measures referred to in paragraph 19 operate. Paragraph 9(e) of Annex A 
states:  
(e) All other documents, communications, orders, directives, legal instruments, 
including all successor instruments and any amendments thereto, providing for export 
subsidies for sugarcane or sugar.  
1.34 We note that paragraph 18 of Australia's panel request indic ates that the measures at issue 
include not only those identified in paragraph 19, but also "any amending, successor, supplemental, 
replacement, renewal, extension or implementing measures thereto". Thus, Australia's panel request  
anticipates the possibili ty of a change to the measures listed therein.  Furthermore, paragraph 19 of 
the panel request identifies the measures at issue broadly as "[f]ederal -level measures pertaining 
to sugar or sugarcane which provide subsidies contingent upon export performance" . We recall that 
the Marketing and Transportation Scheme, like other alleged export subsidy schemes listed in 
Australia's panel request, was adopted by the DFPD, a federal agency, and is therefore a measure 
adopted at the federal level of Government that c ould be covered by paragraph 19. We therefore 
consider that the phrase "any amending, successor, supplemental, replacement, renewal, extension 
or implementing measures thereto" in paragraph 18 of Australia's panel request is broad enough to 
include the Mar keting and Transportation Scheme.  
1.35 As an additional point, we note that the list of legal instruments that implement the measures 
at issue, in paragraph 9(e) of Annex A of Australia's panel request, is open -ended. In our view, the 
phrase "[a]ll other d ocuments, communications, orders, directives, legal instruments, including all 
successor instruments and any amendments thereto, providing for export subsidies for sugarcane 
or sugar[]" found in this paragraph is also broad enough to cover the instruments implementing the 
Marketing and Transportation Scheme. This reinforces our view that the Marketing and 
Transportation Scheme falls within the scope of Australia's panel request.  
 
48 Australia's comments regarding India's request for a preliminary ruling , 1 April 2020, paras.  66-72; 
comments  regarding India's request for a preliminary ruling , 4 May 2020, paras. 50-58. 
49 Australia's panel request, para. 18.  
50 Australia's pan el request, para. 19. ( underlining  original) This is followed by the list of specific subsidy 
programmes  at issue, namely (i) subsidies for the production of sugarcane and sugar that are contingent upon 
export performance; (ii) subsidies for the maintenanc e of stocks for sugar that are contingent upon export 
performance; (iii) measures that prescribe maximum domestic sales quotas and stockholding limits connected 
to export performance; (iv) MIEQs that require mills to export certain quantities of sugar; and  (v) DFIA for sugar 
to be imported in the 2019 -20 and 2020 -21 sugar seasons. (Ibid .)  
51 Australia's panel request, para. 20.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1.36 Guatemala submits that the terms of its panel request, in particular Secti on III.A and 
paragraph 9, are broad enough to encompass the Marketing and Transportation Scheme.52 
1.37 Section III.A of Guatemala's panel request refers, inter alia , to the following measures that 
Guatemala considers to be contingent upon export performan ce: 
The measures at issue include the following, as well as any amendments, related, 
successor, replacement or implementing measures thereto:  
9. Federal -level measures pertaining to sugar or sugarcane that provide 
subsidies contingent upon export performa nce, including, but not limited 
to, the instruments (operating individually, collectively, or in combination 
with each other) identified in paragraph 9 of the Annex to this request.53 
1.38 Paragraph 9 of the Annex to Guatemala's panel request, provides:  
Federal -level measures pertaining to sugar or sugarcane that provide subsidies 
contingent upon export performance , including, but not limited to, the following 
instruments (operating individually, collectively, or in combination with each other):  
… 
(h) All other instruments, including all successor instruments and any 
amendments thereto, providing federal -level subsidies contingent on 
export performance to sugar mills.54 
1.39 The chapeau of Section III.A of Guatemala's panel request specifies that  the measures at issue 
"include" the measures identified in paragraphs 9 -11 of Guatemala's panel request, "as well as any 
amendment, related, successor, replacement or implementing measures thereto". Accordingly, the 
list of the measures at issue anticipat es the possibility of a change to the measures at issue. 
Furthermore, paragraph 9, which follows the chapeau of Section III.A, refers to "[f]ederal -level 
measures pertaining to sugar or sugarcane that provide subsidies contingent upon export 
performance".55 We recall that t he Marketing and Transportation Scheme, like other alleged export 
subsidy schemes, was adopted by the DFPD, a federal agency, and is therefore a measure adopted 
at the federal level of Government. We therefore consider that the text of Se ction III.A of 
Guatemala's panel request is broad enough to cover the Marketing and Transportation Scheme.  
1.40 As an additional point, we note that paragraph 9 of the Annex to Guatemala's panel request 
provides that the measures at issue are " not limited to" the instruments identified therein.56 In our 
view, the phrase "[a]ll other instruments, including all successor instruments and any amendments 
thereto, providing federal -level subsidies contingent on export performance to sugar mills" found in 
paragrap h 9(h) of the Annex is broad enough to cover the legal instruments implementing the 
Marketing and Transportation Scheme. This reinforces our view that the Marketing and 
Transportation Scheme falls within the scope of Guatemala's panel request.  
1.41 In sum,  our examination of the texts of the complainants' panel requests reveals that they 
are broad enough to encompass the Marketing and Transportation Scheme.  
1.4.2 Whether the measures are of the same essence  
1.42 We now turn to examine whether the Marketing and Transportation Scheme is of the same 
essence as the alleged export subsidies identified in the complainants' panel requests.  
1.43 India submits three main arguments why it considers that the Marketing and Transportation 
Scheme is not of the s ame essence as the measures identified in the complainants' panel requests.57 
 
52 Guatemala's comments regarding India's request for a preliminary ruling , 1 April 2020, paras.  45-55. 
53 Guatemala's panel request, para. 9. (underlining original)  
54 Guatemala's panel request, para. 9 of the Annex. (underlining original)  
55 Guatemala's panel  request, para. 9. (underlining omitted)  
56 Guatemala's panel request, para. 9. (underlining added)  
57 India's comments regarding its request for a preliminary ruling , 27 April 2020, paras.  51-56. WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  First, India argues that the nature of the Marketing and Transportation Scheme is different from the 
Production Assistance Scheme and the Buffer Stock Scheme because the Marketin g and 
Transportation Scheme "has been introduced specifically with the view of providing WTO -consistent 
payments to offset transport and marketing costs incurred by sugar mills carrying out the export of 
sugar".58 Second, India submits that the eligibility  requirements under the different schemes vary 
significantly. India points out that, pursuant to the terms of the Production Assistance Scheme, mills 
that have ethanol production capacity are required to supply a certain amount of ethanol to oil 
marketing companies. India further notes that the eligibility for the buffer stock subsidies is 
dependent on the actual maintenance of buffer stock.59 India contrasts this with the eligibility 
requirements for the Marketing and Transportation Scheme which, according  to India, "cover sugar 
mills that have actually incurred … marketing and transport expenses by exporting sugar in 
accordance with their MAEQs".60 Third, India contends that the amounts of assistance provided, and 
the methodology to determine such amounts,  vary greatly depending on the scheme. In this regard, 
India submits that the Marketing and Transportation Scheme provides assistance towards marketing 
and transportation costs at a specified rate in contrast to other schemes under which the amount of 
assistance depends of the volume of the cane crushed.61 
1.44 The complainants maintain that the Marketing and Transportation Scheme is of the same 
essence as India's export contingent measures listed in the complainants' panel requests. In 
particular, the comp lainants submit that the Marketing and Transportation Scheme exhibits the same 
policy purpose, and design and structure as the measures listed in the complainants' panel 
requests.62 For Australia, the Marketing and Transportation Scheme "is merely the late st 
(albeit  renamed) iteration of India's sugar export policy of tying direct payment schemes to an 
export quota program, repeated annually on a seasonal basis".63 Similarly, Brazil and Guatemala 
argue that India simply changed the title of the schemes.64 
1.45 The following factors have been considered in assessing whether a measure enacted after the 
panel request was of the same essence as the measures identified in the request: the type of 
trade-restrictive effect65; the range of products subject to duties66; the operation of the measure 
and the amendment67; their legal implications68; their regulatory purpose69; the proximity of design, 
structure, and impact70; the existence of an explicit reference to the original measure in the 
amendment71; the title of the amendment72; the authority that issued the measure and the 
amendment73; the legal basis cited74; and whether the original measure remained in force "in 
substance".75 We consider some of these factors to be relevant in assessing the matter befo re us.  
1.46 First, we note that the Production Assistance Scheme, the Buffer Stock Scheme, and the 
Marketing and Transportation Scheme were implemented through the same types of legal 
instruments – notifications and orders – and were issued by the same fed eral agency, the DFPD.76 
 
58 India's comments regarding its reque st for a preliminary ruling , 27 April 2020, para. 53.  
59 India's comments regarding its request for a preliminary ruling , 27 April 2020, para. 54.  
60 India's comments regarding its request for a preliminary ruling , 27 April 2020, para. 54.  
61 India's comments regardin g its request for a preliminary ruling , 27 April 2020, para. 55.  
62 Brazil's comments regarding India's request for a preliminary ruling , 4 May 2020, paras. 36 -38; 
Australia's comments regarding India's request for a preliminary ruling , 1 April 2020, paras.  73-75. 
63 Australia's comments regarding India's request for a preliminary ruling , 1 April 2020, para. 80.  
64 Brazil's comments regarding India's request for a preliminary ruling , 1 April 2020, para. 69; Guatemala's 
comments regarding India's request for a preliminary ruling , 1 April 2020, para. 57.  
65 See e.g. Panel Report, Colombia – Textiles , para. 7.37.  
66 See e.g. Panel Reports, Colombia – Textiles , para. 7.37; India – Additional Import Duties , para. 7.63; 
and US – Tariff Measures  (China) , para. 7.49; and  Appellate Body Report, EC – Chicken Cuts , para. 158.  
67 See e.g. Panel Reports, Colombia – Textiles , para. 7.37; and EC – IT Products , para. 7.186.  
68 See e.g. Appellate Body Report, EC – Chicken Cuts , para. 158; and Panel Reports, EC – IT Products , 
para. 7.186; India – Additional Import Duties , para. 7.63; and US – Tariff Measures  (China) , para. 7.50.  
69 See e.g. Panel Report, Russia – Pigs (EU), para. 7.156.  
70 See e.g. Panel Report, Russia – Pigs (EU), para. 7.156.  
71 See e.g. Appellate Body Report,  EC – Chicken Cuts , para. 158.  
72 See e.g. Panel Report s, Colombia – Textiles , para. 7.37; and US – Tariff Measures  (China) , para. 7.51.  
73 See e.g. Panel Reports, Colombia – Textiles , para. 7.37; and US – Tariff Measures  (China) , para. 7.51.  
74 See e.g. Pane l Report, Colombia – Textiles , para. 7.37.  
75 Panel Report, Argentina – Footwear (EC) , para. 8.45  
76 Notification of 2 December 2015, (Exhibit JE -76); Notification of 9 May 2018 (Exhibit JE -75); Notification 
of 5 October 2018 (Exhibit JE -74); Notification of  15 June 2018 , (Exhibit JE -78); Notification of 31  July 2019 , 
(Exhibit JE -77); and Notification of 12 September 2019, (Exhibit JE -114); MIEQ Order of 18  September 2015, WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  We also note that the legal bases of such notices were the same, i.e. Section 3 of the Essential 
Commodities Act 195577 and Clause 5 of the Sugar (Control) Order 1966.78 
1.47 Second, the purpose of the assistance provided under the  Marketing and Transportation 
Scheme79 is the same as that of the Production Assistance Scheme80 and the Buffer Stock Scheme81, 
namely, to pay cane price dues of farmers for the relevant sugar season. India argues that the 
purpose of the Marketing and Transportation Scheme is to provide WTO -consistent payments to 
offset the transport and marketing costs incurred by sugar mills that export sugar.82 As explained in 
section 7.2.4.4 of this Report, we are not persuaded by India's arguments regarding the pur pose of 
the Marketing and Transportation Scheme. Although some elements of the Marketing and 
Transportation Scheme do refer to transport and marketing costs83, paragraph 1 of the Marketing 
and Transportation Scheme, titled "Purpose of Assistance", states t hat the assistance "is to be used 
for payment of cane price dues of farmers for the sugar season 2019 -20 and cane price arrears of 
previous seasons, if any."84 Furthermore, the preamble to, and paragraph 5(i) of, the Marketing and 
Transportation Scheme als o stipulate that the assistance must be used for the payment of cane price 
dues of farmers.85 
1.48 Third, the Marketing and Transportation Scheme, the Production Assistance Scheme, and the 
Buffer Stock Scheme prescribe the same modalities for the payment o f the assistance. Specifically, 
each of the schemes requires that sugar mills open separate non -lien accounts in a bank and provide 
to the bank a list of farmers and their bank account details, as well as the amount of cane price 
dues.86 All three schemes also require sugar mills receiving assistance to submit to the DFPD a 
utilization certificate indicating that the assistance was used to pay cane price arrears to farmers in 
the relevant sugar season.87 
1.49 Fourth, the three subsidy schemes at issue have similar eligibility criteria in that they require 
mills to export a certain amount of sugar in order to be eligible for assistance. In particular, to be 
eligible for assistance under these schemes, a sugar mill must, inter alia , comply with orders and 
directives of the DFPD, including the MIEQ and the MAEQ orders that set the amount of sugar to be 
exported and divide it among individual mills.88 More specifically, the Notifications implementing the 
Production Assistance Scheme for the sugar seasons 2017 -18 and 2018 -19 require, as an eligibility 
 
(Exhibit JE -109); MIEQ Order of 28 March 2018, (Exhibit JE -107); MIEQ Order of 28  Septe mber 2018, 
(Exhibit  JE-108).  
77 Section (3E) of the Essential Commodities Act states:  
Central Government may, from time to time, by general or special order, direct any  producer or 
importer or exporter or recognised dealer or any class of producers or recognised dealers,  to take 
action regarding production, maintenance of stocks, storage, sale, grading, packing, marking,  
weighment, disposal, delivery and distribution of any kind of sugar in the manner  specified in the  
direction.  
(Exhibit J E-43, Section (3E))  
78 Clause 5 of the Sugar (Control) Order enables the Central Government to issue general or special orders 
to sugar producers, importers or dealers to regulate, among others, production, maintenance of stocks , storage, 
sales, delivery an d distribution of any kind of sugar. ( Sugar (Control) Order,  1966,  (Exhibit JE -44), Clause 5, 
p. 42) 
79 Notification of 12 September 2019, (Exhibit JE -114), preamble and para. 1.  
80 See Notification of 2 Dec ember 2015, (Exhibit JE -76), preamble and para. 1; Notification of 9  May 2018 
(Exhibit JE -75), preamble and para. 1; and Notification of 5 October 2018 , (Exhibit JE -74), preamble and para.  1.  
81 See Notification of 15 June 2018 (Exhibit JE -78), preamble and para. 1; and Notification of 31  July 2019 
(Exhibi t JE-77), preamble and para. 1.  
82 India's comments regarding its request for a preliminary ruling , 27 April 2020, para. 53.  
83 Notification of 12 September 2019, (Exhibit JE -114), para. 3.  
84 Notification of 12 September 2019, (Exhibit JE -114), para. 1.  
85 Notification of 12 September 2019, (Exhibit JE -114), preamble and para. 5.  
86 Notification of 2 December 2015, (Exhibit JE -76), para. 2.v; Notification of 9 May 2018, (Exhibit  JE-75), 
para. 3(v); Notification of 5 October 2018, (Exhibit JE -74), para. 3(iv);  Notification of 15  June 2018, 
(Exhibit  JE-78), para. 9(a); Notification of 31 July 2019, (Exhibit JE -77), para. 9(a); Notification of 
12 September  2019, (Exhibit JE -114), para. 5(ii).  
87 Notification of 2 December 2015, (Exhibit JE -76), para. 3; Notificati on of 9 May 2018, (Exhibit JE -75), 
para. 4; Notification of 5 October 2018, (Exhibit JE -74), para. 4; Notification of 15 June 2018, (Exhibit JE -78), 
para. 10; Notification of 31 July 2019, (Exhibit JE -77), para. 10; Notification of 12 September 2019, 
(Exhibit JE-114), para. 6.  
88 Notification of 12 September 2019, (Exhibit JE -114), para. 2.a.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  criterion, that the mill fully comply with all orders of the DFPD for the relevant sugar season.89 By 
the same token, the amendments of 31 December 2018 to the Buffer Stock Scheme 2018 stipulate 
that, to receive the q uarterly reimbursement of the buffer stock subsidy, mills are "required to fully 
comply with all the orders/directives issued by [the DFPD] for compliance during the 2018 -19 sugar 
season".90 Such orders include the MIEQ orders for the relevant sugar seasons, which determine a 
total quantity of sugar that must be exported, and set mill -wise allocations.91 The Marketing and 
Transportation Scheme likewise provides that, to be eligible for assist ance, sugar mills "should have 
exported sugar up to the extent of their [MAEQ] determined by the Central Government for such 
mills for the sugar season 2019 -20".92 In order to be eligible for assistance, a sugar mill is required 
to export at least 50% of i ts MAEQ.93 
1.50 India argu es that, under the Production Assistance Scheme, mills that have ethanol production 
capacity are required to supply a certain amount of ethanol to oil marketing companies. India further 
notes that the eligibility for the Buffer St ock Scheme is dependent on the actual maintenance of 
buffer stock.94 India contrasts this with the eligibility criteria for the Marketing and Transportation 
Scheme, which, "cover sugar mills that have actually incurred … marketing and transport expenses 
by exporting sugar in accordance with their MAEQs".95 It is true that each of the subsidy schemes 
at issue contains several eligibility requirements. For example, as India points out, under the 
Production Assistance Scheme, mills that have ethanol production  capacity must supply a certain 
amount of it to marketing companies.96 However, we consider that a common core feature of all 
three schemes is that they require compliance with the MIEQ or MAEQ orders that set out mill -
specific export targets. That they al so contain other requirements does not change the fact that their 
central requirement is the exportation of a certain amount of sugar.  
1.51 Finally, India argues that the amounts of assistance provided, and the methodology to 
determine such amounts, vary g reatly depending on the scheme. In this regard, India submits that 
the Marketing and Transportation Scheme provides assistance towards marketing and transportation 
costs at a specified rate, in contrast to other schemes that provide different amounts calcu lated on 
the basis of the amount of the cane crushed.97 The complainants do not disagree with India on this 
point.98 Indeed, India is correct that the amount of assistance and the methodology to determine 
that amount vary across the different subsidy schem es. This difference, however, does not detract 
from the fact that the schemes were implemented by the same federal agency through the same 
types of legal instruments,  all three schemes require exportation of a certain amount of sugar in 
order for mills to be eligible for assistance, the purpose of the schemes is the same, and all three 
schemes require that payments be made directly to farmers' accounts on behalf of sugar mills. We 
agree with Australia that the differences that India points out "are immateri al to the issues that fall 
for consideration in this dispute. What is material is that the financial assistance that is paid under 
each scheme, whatever its amount and however that amount is determined, is tied to export 
performance."99 
1.52 Based on the f oregoing, we find the Marketing and Transportation Scheme to be of the same 
essence as the Production Assistance and Buffer Stock Schemes identified in the complainants' panel 
requests.  
 
89 Notification of 9 May 2018, (Exhibit JE -75), para. 2(c); Notification of 5 October 2018 (Exhibit JE -74), 
para. 2(c). In the same vein, the Notification implementing t he Production Assistance Scheme  for the 2015 -16 
sugar season provides that, in order to be eligible for assistance, a mill must export 80 per cent of its MIEQ 
target. (Notification of 2 December 2015, (Exhibit JE -76), para. 2.iii)  
90 Notification of 31 Dece mber 2018, (Exhibit JE -112), para. 2.  
91 MIEQ Order  of 28 March 2018, (Exhi bit JE -107); Notification of 9 May 2018, (Exhibit JE -111), para. 2; 
Notification of 28 September 2018, (Exhibit JE -108).  
92 Notification of 12 September 2019, (Exhibit JE -114), para.  2(a); MAEQ Order of 16 September 2019 , 
(Exhibit JE -115).  
93 Notification of 12 September 2019, (Exhibit JE -114), para. 2(a).  
94 India's comments regarding its request for a preliminary ruling , 27 April 2020, para. 54.  
95 India's comments regarding its request for a preliminary ruling , 27 April 2020, para. 54.  
96 Notification of 9 May 2018, para. 2(a); Notification of 5 October 2018, para. 2(a).  
97 India's comments regarding its request for a preliminary ruling , 27 April 20 20, para. 55.  
98 Brazil's comments regarding India's request for a preliminary ruling , 4 May 2020, para. 44; Australia's 
comments regarding India's request for a preliminary ruling , 4 May 2020, para. 78.  
99 Australia's comments regarding India's request for a preliminary ruling , 4 May, para. 78.  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1.4.3  Whether including the Marketing and Transportation Scheme in the  Panel's terms of 
reference would contribute to the prompt settlement of, and securing a positive solution 
to, the present disputes  
1.53 India considers  that including the Marketing and Transportation Scheme  in the Panel's terms 
of reference is neither necessary nor warranted to secur e a positive solution to this dispute. India 
submits that the Marketing and Transportation Scheme  "by no means is a recurring measure but 
rather a separate and distinct measure i n its own right" .100 In India's view, "the Marketing and 
Transportation Scheme may be adequately examined and taken into consideration, if required, 
during the stage of compliance".101 
1.54 The complainants submit that including the Marketing and Transportat ion Scheme in the 
Panel's terms of reference is necessary to contribute to a prompt settlement of, and securing a 
positive solution to, the disputes, in accordance with the principles articulated in Articles 3.3 and 3.7 
of the DSU.102 The complainants argue  that India has a demonstrated pattern of adopting, on a 
seasonal basis, export -related support schemes that have similar policy objectives and design, 
structure, and operation.103 Australia and Guatemala further note that requiring the complainants to 
challenge every new iteration of these measures could turn them into a "moving target" that shifts 
from year to year.104 
1.55 We note that India's assistance schemes are adopted on a seasonal basis. In particular, the 
complainants submit evidence with respect t o the Production Assistance Scheme for the 2015 -16105, 
2017-18,106 and 2018 -19 sugar seasons107, and the Buffer Stock Scheme for the 2018 -19108 and 
2019-20 sugar seasons.109 The Marketing and Transportation Scheme was also adopted on a 
seasonal basis, for the 2 019-20 sugar season.110 
1.56 We agree with the complainants that requiring them to challenge each seasonal iteration of 
India's alleged export subsidy measures would turn such measures into moving targets. Such an 
outcome would defeat the objectives of prom pt dispute settlement, set out in Article 3.3 of the DSU, 
and securing a positive solution to disputes, set out in Article 3.7 of the DSU.111 Thus, including the 
Marketing and Transportation Scheme in the Panel's terms of reference would contribute to a pro mpt 
settlement of, and securing a positive solution to, the present disputes.  
1.57 Regarding India's argument that the Marketing and Transportation Scheme may be assessed 
in a compliance proceeding brought pursuant to Article 21.5 of the DSU, we note that this argument 
prejudges the evolution of these disputes by assuming that there will be compliance proceedings. 
Furthermore, India has not explained how exactly the Marketing and Transportation Scheme would 
fall within the scope of such hypothetical complia nce proceedings. In any event, we cannot, based 
on such a speculative argument, decline to exercise jurisdiction over a measure that we find to be 
within our terms of reference.  
 
100 India's comments regarding its request for a preliminary ruling , 27 April 2020, para. 57 . 
101 India's comments regarding its request for a preliminary ruling , 27 April 2020, para. 57 . 
102 Brazil's comments regarding Ind ia's request for a preliminary ruling , 1 April 2020, paras. 71 -74; 
Australia's comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 81 -83; Guatemala's 
comments regarding India's request for a preliminary ruling , 1 April 2020, p aras. 59 -61. 
103 Brazil's comments regarding India's request for a preliminary ruling , 1 April 2020, para. 73; Australia's 
comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 82 -83. 
104 Australia's comments regarding India's request for a preliminary ruling , 1 April 2020, para. 82; 
comments regarding India's request for a preliminary ruling , 4 May 2020, para. 83; Guatemala's comments 
regarding India's request for a preliminary ruling , 1 April 2020, para. 59; comments r egarding India's request 
for a preliminary ruling , 4 May 2020, paras. 54 -55. 
105 Notification of 2 December 2015, (Exhibit JE -76). 
106 Notification of 9 May 2018, (Exhibit JE -75). 
107 Notification of 5 October 2018, (Exhibit JE -74).  
108 Notification of 15 June 20 18, (Exhibit JE -78). 
109 Notification of 31 July 2019, (Exhibit JE -77). 
110 Notification of 12 September 2019, (Exhibit JE -114), prea mble.  
111 As the panel in Argentina – Footwear (EC)  observed,  in such circumstances,  "Members could always 
keep one step ahead of any WTO dispute settlement proceeding because in such a situation, the complaining 
Member would indeed, challenge a 'moving target', and panel and Appellate Body's findings could already be 
overtaken by events when they are rendered and adopted by the DSB." (Panel Report, 
Argentina  - Footwear  (EC), para. 8.41. See also Appellate Body Report, Chile – Price Band System , para. 144 ).  WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1  
 
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  1.5 Conclusion  
1.58 We have concluded that the complainants' panel requests are broad enough to encompass the 
Marketing and Transportation Scheme. We have also concluded that the Marketing and 
Transportation Scheme is of the same essence as the subsidy schemes listed in the c omplainants' 
panel requests because all those Schemes : (i) were implemented by the same federal agency 
through the same type of legal instrument; (ii) have the same purpose; (iii) prescribe the same 
modalities for the payment of the assistance; and (iv) ha ve similar eligibility criteria in that they 
require mills to export a certain amount of sugar in order to be eligible for assistance. As the 
Marketing and Transportation Scheme is of the same essence as the other subsidy schemes, and 
the complainants' pan el requests are broad enough to encompass it, and in light of the seasonal 
character of India's alleged export subsidies, we consider that including the Marketing and 
Transportation Scheme in our terms of reference would contribute to the prompt settlement  of, and 
securing a positive solution to, the present disputes, in accordance with Articles 3.3 and 3.7 of the 
DSU. 
1.59 We therefore find that the Marketing and Transportation Scheme is within our terms of 
reference.  
 
__________