WT/DS579/R  
WT/DS580/R  
WT/DS581/R  
 
14 December  2021 
(21-8036) Page: 1/115 
  Original: English  
 
  
INDIA – MEASURES CONCERNING SUGAR AND SUGARCANE  
REPORT S OF THE PANEL S 
 
 
 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  16 
1.1   Complaint by Brazil  ................................ ................................ ................................ ... 16 
1.2   Complaint by Australia  ................................ ................................ ..............................  16 
1.3   Complaint by Guatemala  ................................ ................................ ...........................  16 
1.4   Panel establishment and composition  ................................ ................................ ..........  16 
1.5   Panel proceedings  ................................ ................................ ................................ ..... 17 
1.5.1   General  ................................ ................................ ................................ ................  17 
1.5.2   The Panel's substantive meetings held by remote means  ................................ .............  18 
1.5.2.1    First substantive meeting with the parties and third parties  ................................ ....... 18 
1.5.2.2    Second substantive meeting with the parties  ................................ ...........................  21 
1.5.3   Preliminary ruling  ................................ ................................ ................................ .. 21 
2   FACTUAL ASPECTS  ................................ ................................ ................................ ..... 22 
2.1   The measures at issue  ................................ ................................ ...............................  22 
2.1.1   India's alleged domestic support to sugarcane producers  ................................ .............  22 
2.1.2   India's alleged export subsidies  ................................ ................................ ................  24 
3   PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  25 
3.1   Brazil  ................................ ................................ ................................ ......................  25 
3.2   Australia  ................................ ................................ ................................ .................  25 
3.3   Guatemala ................................ ................................ ................................ ...............  26 
3.4   India ................................ ................................ ................................ ......................  26 
4   ARGUMENTS OF THE P ARTIES  ................................ ................................ ...................  27 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  27 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 27 
6.1   Introduction  ................................ ................................ ................................ .............  27 
6.2   Requests  for review of sections 1 to 3 (Introduction, Factual aspects, and Parties' requests 
for findings and recommendations)  ................................ ................................ .....................  28 
6.3   Requests for review of section 7.1 (Domestic support)  ................................ ...................  28 
6.4   Requests for review of section 7.2 (Export subsidies)  ................................ .....................  30 
6.4.1   Requests for review regarding the Panel's recommendation under Article 4.7 of the SCM 
Agreement  ................................ ................................ ................................ ......................  32 
6.5   Requests for review of section 7.3 (Notifications)  ................................ ..........................  35 
6.6   Requests for review of the Appendix ( Calculation of India's market  price support to 
sugarcane  producers for the 2014 -15 to 2018 -19 sugar seasons)  ................................ ...........  35 
7   FINDINGS  ................................ ................................ ................................ .................  35 
7.1   Domestic suppo rt ................................ ................................ ................................ ..... 35 
7.1.1   Introduction  ................................ ................................ ................................ ..........  35 
7.1.2   India's permitted level of product -specific support to sugarcane producers  .....................  38 
7.1.3   India's actual amount of non -exempt product -specific support to sugarcane producers  .... 40 
7.1.3.1    General considerations  ................................ ................................ .........................  40 
7.1.3.2    Market price support  ................................ ................................ ...........................  42 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.1.3.2.1    Overview  ................................ ................................ ................................ ........  42 
7.1.3.2.2    The scope of "market price support"  ................................ ................................ .... 44 
7.1.3.2.3    India's market price support to sugarcane producers  ................................ .............  52 
7.1.3.2.4    Budgetary payments made to maintain the price gap  ................................ ............  53 
7.1.3.3    Non-exempt direct payments and other non -exempt policies  ................................ ..... 54 
7.1.3.3.1    Overview  ................................ ................................ ................................ ........  54 
7.1.3.3.2    Tamil Nadu's transitional production incentives  ................................ .....................  56 
7.1.3.3.3    Andhra Pradesh's purchase tax remittances  ................................ ..........................  58 
7.1.3.3.4    Karnatak a's incentive price payments  ................................ ................................ .. 61 
7.1.3.3.5    Amount of non -exempt direct payments or other non -exempt policies to sugarcane 
producers  ................................ ................................ ................................ .......................  64 
7.1.3.4    Overall calculation  ................................ ................................ ...............................  64 
7.1.4   Comparison and conclusion  ................................ ................................ .....................  64 
7.2   Export subsidies  ................................ ................................ ................................ ....... 65 
7.2.1   Introduction  ................................ ................................ ................................ ..........  65 
7.2.2   Measures at issue  ................................ ................................ ................................ .. 67 
7.2.2.1    MIEQs and MAEQ  ................................ ................................ ................................  67 
7.2.2.2    Production Assistance Scheme  ................................ ................................ ..............  68 
7.2.2.3    Buffer Stock Scheme  ................................ ................................ ...........................  69 
7.2.2.4    Marketing and Transportation Scheme  ................................ ................................ ... 70 
7.2.2.5    Duty Free Import Authorization (DFIA) Scheme  ................................ .......................  71 
7.2.3   Order of analysis  ................................ ................................ ................................ ... 72 
7.2.4   Claims under the Agreement on Agriculture  ................................ ...............................  73 
7.2.4.1    Introduction  ................................ ................................ ................................ ....... 73 
7.2.4.2    Overview of the relevant provisions  ................................ ................................ ....... 74 
7.2.4.3    India's export subsidy commitments  ................................ ................................ ...... 75 
7.2.4.4    Whether the Marketing and Transportation Scheme falls under Article 9.4 of the 
Agreement on Agriculture  ................................ ................................ ................................ . 76 
7.2.4.4.1    Introduction  ................................ ................................ ................................ .... 76 
7.2.4.4. 2   Burden of proof  ................................ ................................ ................................  76 
7.2.4.4.3    Main arguments of the parties and third parties  ................................ ....................  77 
7.2.4.4.4    Legal standard  ................................ ................................ ................................ . 79 
7.2.4. 4.5   Assessment of the Marketing and Transportation Scheme under Articles 9.1(d) and 
9.1(e) of the Agreement on Agriculture  ................................ ................................ ...............  80 
7.2.4.4.5.1    Whether the assistance under the Marketing and Transportation Scheme relates to 
the types of costs in Articles 9.1(d) and (e)  ................................ ................................ .........  81 
7.2.4.4.5.2    Whether the amount of assistance provided under the Marketing and Transportation 
Scheme exceeds the actual marketing and transportation costs  ................................ ..............  82 
7.2.4.4.6    Conclusion  ................................ ................................ ................................ ...... 84 
7.2.4.5    Whether India's assistance schemes are subsidies contingent on export performance 
under Article 9.1(a) of the Agreement on Agriculture  ................................ ............................  84 
7.2.4.5.1    Introduction  ................................ ................................ ................................ .... 84 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.2.4.5.2    Legal standard  ................................ ................................ ................................ . 85 
7.2.4.5.3    Production Assistance Scheme, Buffer Stock Scheme, and Marketing and Transportation 
Scheme  ................................ ................................ ................................ ..........................  87 
7.2.4.5.3.1    Whether the assistance is provided by a government or its agency  .......................  87 
7.2.4.5.3.2    Whether assistance 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"  ................................ ................................ ................................ ............................  88 
7.2.4.5.3.3    Whether the assistance is "a direct subsid[y]"  ................................ ....................  89 
7.2.4.5.3.4    Whether the subsidies are "contingent on export performance"  ............................  95 
7.2.4.5.4    Duty Free Import Authorization (DFIA) Scheme  ................................ ....................  98 
7.2.4.5.4.1    Introduction  ................................ ................................ ................................ .. 98 
7.2.4.5.4.2    Whether the DFIA Scheme does not constitute a subsidy pursuant t o footnote  1 to 
the SCM Agreement  ................................ ................................ ................................ .........  98 
7.2.4.5.4.3    Whether the DFIA Scheme is inconsistent with Article 9.1(a) of the Agreement on 
Agriculture  ................................ ................................ ................................ ....................  100 
7.2.4.6    Guatemala's claim under Article 9.1(c) of the Agreement on Agriculture  ....................  102 
7.2.4.7    Overall conclusion under the Agreement on Agriculture  ................................ ..........  102 
7.2.5   Claims under the SCM Agreement  ................................ ................................ ..........  102 
7.2.5.1    Introduction  ................................ ................................ ................................ ..... 102 
7.2.5.2    Whether Article 27.2(b) applies to India  ................................ ...............................  103 
7.2.5.3    Whether India's subsidy schemes are inconsistent with Article 3.1(a) of the 
SCM Agreement  ................................ ................................ ................................ .............  106 
7.2.5.4    Conclusion under the SCM Agreement  ................................ ................................ .. 107 
7.2.6   Recommendation under Article 4.7 of the SCM Agreement  ................................ .........  107 
7.3   Notifications  ................................ ................................ ................................ ..........  108 
8   CONCLUSIONS AND RECOMMENDATIONS  ................................ ...............................  113  
8.1   Complaint by Brazil (DS579)  ................................ ................................ ....................  113 
8.2   Complaint by Australia (DS580)  ................................ ................................ ................  113 
8.3   Complaint by Guatemala (DS581)  ................................ ................................ .............  114 
 
 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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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 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  
 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 meetin g, dated 18 November 2020  135 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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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 • WT/DS580/R • WT/DS581/R  
 
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    CASES CITED IN TH ESE REPORT S 
 
Short Title  Full Case Title and Citation  
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R , adopted 12 January 2000, as modified by Appellate Body Report 
WT/D S121/AB/R, DSR 2000:II, p. 575  
Argentina – Textiles and 
Apparel  
 Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles , Apparel and Other Items , WT/DS56/AB/R  and Corr.1, adopted 22 April 
1998, DSR 1998:III, p. 1003  
Brazil – Aircraft  
 Appellate Body Report, Brazil – Export Financing Programme for  Aircraft , 
WT/DS46/AB/R , adopted 20 August 1999, DSR 1999:III, p. 1161  
Brazil – Aircraft  Panel Report, Brazil – Export Financing Programme for Aircraft , WT/DS46/R , 
adopted 20 August 1999, as modified by Appellate Body Report WT/DS46/AB/R, 
DSR 1999:III, p. 1221  
Canada – Aircraft  Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R , adopted 20 August 1999, DSR 1999:III, p. 1377  
Canada – Aircra ft (Article 
21.5 – Brazil)  Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft – 
Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/RW , adopted 4 August 
2000, as modified by Appellate Body Report WT/DS7 0/AB/RW, DSR 2000:IX, p. 
4315 
Canada – Aircraft Credits 
and Guarantees  Panel Report, Canada – Export Credits and Loan Guarantees for Regional Aircraft , 
WT/DS222/R  and Corr.1, adopted 19 February 2002, DSR 2002:III, p. 849  
Canada – Dairy  Appellate Body Report, Canada – Measures Affecting the Importation of Milk and 
the Exportati on of Dairy Products , WT/DS103/AB/R , WT/DS113/AB/R , and 
Corr.1, adopted 27 October 1999, DSR 1999:V, p. 2057  
Canada – Dairy  Panel Report, Canad a – Measures Affecting the Importation of Milk and the 
Exportation of Dairy Products , WT/DS103/R , WT/DS113/R , adopted 27 October 
1999, as modified by Appellate Body Report WT/D S103/AB/R, WT/DS113/AB/R, 
DSR 1999:VI, p. 2097  
Canada – Dairy (Article 21.5 
– New Zealand and US)  Appellate Body Report, Canada – Measures Affecting the Importation of Milk and 
the Exportation of Dairy Products – Recourse to Article 21.5 of the DSU by New  
Zealand and the United States , WT/DS103/AB/RW , WT/DS113/AB/RW , adopted 
18 December 2001, DSR 2001:XIII, p. 6829  
Canada – Renewable Energy 
/ Canada – Feed-in Tariff 
Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 24 May 2013, DSR 
2013:I, p. 7  
Canada – Renewable Energy 
/ Canada – Feed-in Tariff 
Program  Panel Reports, Canada – Certain Measures Affecting the Renewable Energy 
Generation Sector / Canada – Measures Relating to the Feed -in Tariff Program , 
WT/DS412/R  and Add.1 / WT/DS426/R  and Add.1, adopted 24 May 2013, as 
modified by Appellate Body Reports WT/DS412/AB/R / WT/DS426/AB/R, DSR 
2013:I, p. 237  
Chile - Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Pro ducts , WT/DS207/AB/R , adopted 23 October 
2002, DSR 2002:VIII, p. 3045 (C orr.1, DSR 2006:XII, p. 5473)  
China – Agricultural 
Producers  Panel Report, China – Domestic Support for Agricultural Producers , WT/DS511/R  
and Add.1, adopted 26 April 2019  
China – Autos (US)  Panel Report, China – Anti-Dumping and Countervailing Duties on Certain 
Automobiles from the United States , WT/DS440/R  and Add.1, adopted 18 June 
2014, DSR 2014:VII, p. 2655  
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performance Stainless 
Steel Seamless Tubes ("HP-SSST") from the European Union , WT/DS454/AB/R  
and Add.1 / WT/DS460/AB/R  and Add.1, adopted 28 October 2015, DSR 2015:IX, 
p. 4573  
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / WT/DS398/AB/R , adopted 
22 February 2012, DSR 2012:VII, p. 3295  
EC – Chicken Cuts  Appellate Body Report, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopted 27 
September 2005, and Corr.1, DSR 2005:XIX, p. 9157  
EC – Fasteners (China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR 2011:VII, p. 3995  
EC – Fasteners (China)  Panel Report, European Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, adopted 28 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Short Title  Full Case Title and Citation  
July 2011, as modified by Appellate Body Report WT/DS397/AB/R, DSR 
2011:VIII, p. 4289  
EC – Export Subsidies on 
Sugar  Appellate Body Report, European Communities – Export S ubsidies on Sugar , 
WT/DS265/AB/R , WT/DS266/AB/R , WT/DS283/AB/R , adopted 19 May 2005, 
DSR 2005:XIII, p. 6365  
EC and certain member 
States – Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 1 June 
2011, DSR 2011:I, p. 7  
EC and certain member 
States – Large Civil Aircraft  Panel Report, European Communities and Certain Member States – Measures 
Affecting Trade in Large Civil Aircraft , WT/DS316/R , adopted 1 June 2011, as 
modified by Appellate Body Report WT/DS316 /AB/R, DSR 2011:II, p. 685  
EC and certain member 
States – Large Civil Aircraft 
(Article 21.5 - EU) Panel Report, European Communities and Certain Member States – Measures 
Affecting Trade in Large Civil Aircraft  – Recourse to Article 21.5 of the DSU by 
the European Union and Certain Member States , WT/DS316/RW2  and Add.1, 
circul ated to WTO Members 2 December 2019 [appealed by the European Union 
6 December 2019 – the Division suspended its work on 10 December 2019]  
EC and certain member 
States – Large Civil Aircraft 
(Article 21.5 – US) Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft  – Recourse to Article 21.5 of the 
DSU by the United States , WT/DS316/AB/RW  and Add.1, adopted 28 May 2018, 
DSR 2018:V, p. 1985  
EC and certain member 
States – Large Civil Aircraft 
(Article 21.5 – US) Panel Report, European Commun ities and Certain Member States – Measures 
Affecting Trade in Large Civil Aircraft  – Recourse to Article 21.5 of the DSU by 
the United States , WT/DS316/RW  and Add.1, adopted 28 May 2018, as modified 
by Appellate Body Report WT/DS316/AB/RW, DSR 2018:VI, p. 2519  
EC – Selected Customs 
Matters  Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11 December 2006, DSR 2006:IX, p. 3791  
EC – Selected Customs 
Matters  Panel Report, European Com munities – Selected Customs Matters , WT/DS315/R , 
adopted 11 December 2006, a s modified by Appellate Body Report 
WT/DS315/AB/R, DSR 2006:IX, p. 3915  
EU – PET (Pakistan)  Appellate Body Report, European Union – Countervailing Measures on Certain 
Polyethylene Terephthalate  from Pakistan , WT/DS486/AB/R  and Add.1, adopted 
28 May 2018 , DSR 2018:IV, p. 1615  
Guatem ala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25 November 1998, DSR 
1998:IX, p. 3767  
India – Export Related 
Measures  Panel Report, India – Export Related Measures , WT/DS541/R  and Add.1, 
circulated to WTO Members 31 October 2019 [appealed by India 19 November 
2019 – the Division suspended its work on 10 December 2019]  
Japan – DRAMs (Korea)  Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R  and Corr.1, adopted 17 December 
2007, DSR 2007:VII, p. 2703  
Korea – Alcoholic Beverages  Panel Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/R , WT/DS84/R , 
adopted 17 February 1999, as modified by Appellate Body Report 
WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, p. 44  
Korea – Pneumatic Valves  
(Japan)  Appellate Body Report, Korea – Anti-Dumping Duties on Pneumatic Valves from 
Japan , WT/DS504/AB/R  and Add.1, adopted 30  September  2019 
Korea – Various Measures 
on Beef  Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and 
Frozen Beef , WT/DS161/AB/R , WT/DS169/AB/R , adopted 10 January 2001, DSR 
2001:I, p. 5  
Korea – Various Measures 
on Beef  Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen 
Beef, WT/DS161/R , WT/DS169/R , adopted 10 January 2001, as modified by 
Appellate Body Report WT/DS161/AB/R , WT/DS169/AB/R, DSR 2001:I, p. 59  
Russia – Pigs (EU)  Panel Report, Russian Federation – Measures on the Importation of Live Pigs, 
Pork and Other Pig Products from the European Union , WT/DS475/R  and Add.1, 
adopted 21 March 2017, as modified by Appellate Body Report WT/DS475/AB/R , 
DSR 2017:II, p. 361  
Thailand – Cigarettes 
(Philippines) (Article 21.5 – 
Philippines)  Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the 
Philippines  – Recourse to Article 21.5 of the DSU by the Philippines , 
WT/DS371/RW  and Add.1, circulated to WTO Members 12 November 2018 
[appealed by Thailand 9 January 2019 – the Division suspended it s work on 10 
December 2019]  
US – Carbon Steel   Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R  
and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779  
US – Carbon Steel (India)  Appellate Body Report, United States – Countervailing Measures on Certain Hot -
Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R , adopted 19 
December 2014, DSR 2014:V, p. 1727  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Short Title  Full Case Title and Citation  
US – Corrosio n-Resistant 
Steel Sunset Review  Appellate Body Report, United States – Sunset Review of Anti -Dumping Duties 
on Corrosion -Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R , 
adopted 9 January 2004, DSR 2004:I, p. 3  
US – Countervailing and 
Anti-Dumping Measures 
(China)  
 Appellate Body Report, United States – Counterv ailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R  and Corr.1, adopted 
22 July 2014, DSR 2014:VIII, p. 3027  
US – Countervailing 
Measures (China)  Appellate Body Report, United States – Countervailing Duty Measures on Certain 
Products from China , WT/DS437/AB/R , adopted 16 January 2015, DSR 2015:I, 
p. 7 
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/AB/R , adopted 20 March 2000, D SR 2000:III, p. 1619  
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales Corporations" , 
WT/DS108/R , adopted 20 March 2000, as modified by Appellate Body Report 
WT/DS1 08/AB/R, DSR 2000:IV, p. 1675  
US – FSC (Article 21.5 – 
EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article 21.5 of the DSU by the European 
Communities , WT/DS108/AB/RW , adopted 29 January 2002, DSR 2002:I, p. 55  
US – Gambling  Appellate Body Report, United States – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R , adopted 20 April 
2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)  
US – Large Civil Aircraft 
(2nd complaint)  Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R , adopted 23 March 2012,  DSR 
2012:I, p. 7  
US – Large Civil Aircraft 
(2nd complaint)  Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft 
(Second Complaint) , WT/DS353/R , adopted 23 March 2012, as modified by 
Appellate Body Report WT/DS 353/AB/R, DSR 2012:II, p. 649  
US – Shrimp (Viet Nam)  Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from 
Viet Nam , WT/DS404/R , adopted 2 September 2011, DSR 2011:X, p. 5301  
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Canada , WT/DS257/AB/R , 
adopted 17 February 2004, DSR  2004:II, p. 571  
US – Renewable Energy  Panel Report, United States – Certain Measures Relating to the Renewable Energy 
Sector , WT/DS510/R  and Add.1, circulated to WTO Members 27 June 2019 
[appealed by the United States 15 August 2019 – the Division suspended its work 
on 10 December 2019 ] 
US – Tariff Measures 
(China)  Panel Report, United States – Tariff Measures on Certain Goods from China , 
WT/DS543/R  and Add.1, circulated to WTO Members 15 September 2020 
[appealed by the United States 26 October 2020]  
US – Tax Incentives  Panel Report, United States – Conditional Tax Incentives for Large Civil Aircraft , 
WT/DS487/R  and Add.1, adopted 22 September 2017, as modified by Appellate 
Body Report WT/DS487/AB/R, DSR 2017:V, p. 2305  
US – Upland Cotton  Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3  
US – Upland Cotton  Panel Report, United States  – Subsidies on Upland Cotton , WT/DS267/R , Add.1 
to Add.3 and Corr.1, adopt ed 21 March 2005, as modified by Appellate Body 
Report WT/DS267/AB/R, DSR 2005:II, p. 299  
US – Zeroing (Japan) 
(Article 21.5 – Japan)  Appellate Body Report, United States – Measures Relating to Zeroing and Sunset 
Reviews – Recourse to Article 21.5 of the DSU by Japan , WT/DS322/AB/RW , 
adopted 31 August 2009, DSR 2009:VIII, p. 3441  
 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  EXHIBITS  REFERRED TO IN TH ESE REPORT S 
Exhibit 
No. Short title  Title 
AUS-1 
(revised 23 
March 
2021)  Australia's Domestic Support 
Calculations  
 Australia's domestic support calculations, Microsoft Excel 
workbooks, Revision 3  
AUS-8, 
GTM-31 Rangara jan Committee Report  "Report of the Committee on the Regulation of Sugar 
Sector in India: The Way Forward", 5 October 2012 
(Rangarajan Committee Report)  
AUS-15 Press Release, Press Information 
Bureau, 31 July 2018  Press Information Bureau, Ministry of Consumer Affairs, 
Food and Public Distribution, "Fair and Remunerative 
Price of Sugarcane" (Press Release), 31 July 2018  
AUS-17 Order of 22 October 2013  Order G.S.R. 697(E)/Ess.Com./Sugarcane, Ministry of 
Consumer Affairs, Food and Public Distribution, 2 2 
October 2013  
AUS-19 Notification of 1 October 2015  
 Order G.S.R. 752(E), Ministry of Consumer Affairs, Food 
and Public Distribution, 1 October 2015  
AUS-20 Notification of 30 September 
2016 Notification G.S.R. 932(E), Ministry of Consumer Affairs, 
Food and Public Distribution, 30 September 2016  
AUS-22 Notification of 27 September 
2017 Notification G.S.R. 1205(E), Ministry of Consumer Affairs, 
Food and Public Distribution, 27 September 2017  
AUS-38 - Customs Tariff Act 1975  
AUS-40 Foreign Trade Policy 2015 -2020 Notification 01/2015 -2020, Foreign Trade Policy, 2015 -
2020 
AUS-41 Amendment to the Foreign Trade 
Policy 2015 -2020 Notification No. 57/2015 -2020, Department of 
Commerce, 28 March 2018  
AUS-45 DFPD Functions  Government of India, Department of Food and Public 
Distribution, Ministry of Consumer Affairs, Food and 
Public Distribution, "Functions (As per Allocation of 
Business Rules)", https://dfpd.gov.in/fun.htm   
AUS-48 Notes on Demands for Grants, 
2018-2019 Central Government of India's 2018 -19 Expenditure 
Budget  
AUS-49 - First Advance Estimates of Production of Foodgrains for 
2019-20, Ministry of Agriculture and Farmers Welfare, 23 
September 2019  
AUS-52 Karnataka Sugarcane Act  Karnataka Sugarcane (Regulation of Purchase and 
Supply) Act 2013  
AUS-54 Order of 24 July 2018  Order G.O.(Ms).No.191, Government of Tamil Nadu, 
Agriculture (S1) Department, 24 July 2018  
AUS-63 Notification by the Haryana 
Government , 8 March 2019  Notification No. 649 -Agri.II(3) -219/3493, Haryana 
Government, Agriculture and Farmers Welfare 
Department, 8 March 2019  
AUS-66 "Punjab Govt to pay Rs 25 per 
quintal directly to cane farmers", 
The Tribune , 6 December 2018  "Punjab Govt to pay Rs 25 per quintal directly to cane 
farmers", The Tribune , 6 December 2018,  
https://www.tribuneindia.com/news/archive/pvt -sugar -
mill-owners -to-clear-payments -of-cane-growers -capt-
amarinder -693812   
BRA-1 
(revised -3) - Brazil's Calculation of India's Domestic Support for 
Sugarcane  
GTM-19 Mr. Tarun Sawhney, President of 
ISMA, "The Current Sugarcane 
Pricing Policy & its Critical 
Analysis"  Mr. Tarun Sawhney, President of ISMA, "The Current 
Sugarcane Pricing Policy & its C ritical Analysis" available 
at 
https://indiansugar.com/PDFS/Current_sugarcane_pricin
g_policy__0405 -Tarun_Sawhney.pdf , last accessed on 
14.01.2020  
GTM-22 Priyanka Singh, Manmohan Singh 
and BL Sharma, "Variation in 
sugar content between early and 
mid-late maturing sugarcane 
varieties across the crushing 
period in sub -tropical India", 
Proceedings of the International 
Society of Sugar Cane 
Technologists , volum e 29, 2016  Priyanka Singh, Manmohan Singh and BL Sharma, 
"Variation in sugar content between early and mid -late 
maturing sugarcane varieties across the crushing period 
in sub -tropical India", Proceedings of the International 
Society of Sugar Cane Technolog ists, volume 29, 2016, 
available at 
https://www.researchgate.net/publication/311986635_Va
riation_in_sugar_content_between_early_and_mid -
late_maturing_sugarcane_varieties_across_the_crushingWT/DS579/R • WT/DS580/R • WT/DS581/R  
 
- 11 - 
 
  Exhibit 
No. Short title  Title 
_period_in_sub -tropical_India , last accessed on 
15.01.2020  
GTM-28 Karnataka Sugarcane Amendment 
Act The Karnataka Act No. 28 of 2014, The Karnataka 
Sugarcane (Regulation of Purchase and Supply) 
(Amendment) Act, 2014  
GTM-45 
(revised 12 
May 2021)  - Guatemala's calculations of India's AMS Revision 12 May 
2021 (Revision 12 May 2021)  
IND-4 Communication from the 
Government of India  of 18 March 
2020 Communication F. No. 21(3)/2019 -SP-I of the Ministry of 
Consumer Affairs, Food & Public Distribution, Department 
of Food & Public Distribution, dated 18 March 2020  
IND-5 Notification from the Min istry of 
Finance of 14 November 2018 
(Goods and Services Tax 
Compensation)  Gazette of India, Notification No. 1/2018 (Goods and 
Services Tax Compensation), G.S.R. 1116(E), Ministry of 
Finance, Department of Revenue, 14 November, 2018  
IND-15 DFPD's Letter to Food Corporation 
of India of 25 June 2019  Communication from Department of Food & Public 
Distribution dated 25 June 2019 to Food Corporation of 
India 
IND-16 DFPD's Letter to Ministry of 
Railways of 26 June 2019  Communications from Department of Food & Public 
Distribution dated 26 and 27 June 2019 to Ministry of 
Railways  
IND-17 DFPD's Office Memorandum to 
MMTC of 11 July 2019  Communication from Department of Food & Public 
Distribution dated 11 July 2019 to Metals and Minerals 
Trading Corporation of Indi a Ltd.  
IND-18 DFPD's Office Memorandum to 
STC of 11 July 2019  Communication from Department of Food & Public 
Distribution dated 11 July 2019 to State Trading 
Corporation of India Ltd.  
IND-21 Foreign Trade Policy, Handbook of 
Procedures 2015 -20 Chapter 4, Foreign Trade Policy 2015 -20, Handbook of 
Procedures  
IND-23 Office Memorandum from Ministry 
of Railways to DFPD of 28 June 
2019 Ministry of Railways Office Memorandum dated 28 June 
2019 
IND-24 - Application Form ANF - 4G for issue of Transfera ble Duty -
Free Import Authorisation (DFIA)  
IND-25 - Appendix 4H, Register for accounting the consumption 
and stocks of duty free imported  or domestically procured 
raw materials, components, etc., allowed under Advance 
Authorisation/DFIA, Foreign Trade Policy, Handbook of 
Procedures  
JE-2 DFPD Communication: Fixation of 
FRP 2014 -15 season, 14 February 
2014 Ministry of Consumer Affairs, Food & Public Distribution, 
Fixation of Fair and Remunerative Price payable by sugar 
mills for 2014 -15 sugar season, 14 February 2014  
JE-3 Press Release, Press Information 
Bureau, 16 January 2015  Cabinet Committee on Economic Affairs (CCEA), 
Determination of Fair and Remunerative Price payable by 
sugar mills for 2015 -16 sugar season, 16 January 2015  
JE-4 DFPD C ommunication: Fixation of 
FRP for 2015 -16 season, 2 
February 2015  Ministry of Consumer Affairs, Food & Public Distribution, 
Fixation of Fair and Remunerative Price payable by sugar 
mills for 2015 -16 sugar season, 2 February 2015  
JE-5 CACP Price Policy for  Sugarcane: 
2016-17 Sugar Season  CACP, Price Policy for Sugarcane (the 2016 -17 Sugar 
Season), August 2015  
JE-6 Press Release, Press Information 
Bureau, 24 May 2017  CCEA, A farmer friendly step Cabinet approves Fair and 
Remunerative Price payable by sugar  mills for 2017 -18 
sugar season, 24 May 2017  
JE-7 DFPD Communication: Fixation of 
FRP for 2017 -18 season, 1 June 
2017 Ministry of Consumer Affairs, Food & Public Distribution, 
Fixation of Fair and Remunerative Price payable by sugar 
mills for 2017-18 sugar season, 1 June 2017  
JE-8 Press Release, Press Information 
Bureau, 18 July 2018  CCEA, Determination of Fair and Remunerative Price 
payable by sugar mills for 2018 -19 sugar season, 18 July 
2018 
JE-9 DFPD Communication: Fixation of 
FRP for 201 8-19 sugar season, 20 
July 2018  Communication No. 3(1)/2017 -SP-I, Ministry of 
Consumer Affairs, Food and Public Distribution, 20 July 
2018 
JE-11 Fair and Remunerative Price of 
Sugarcane in the Country, ISMA  Indian Sugar Mills Association, "Fair and Remune rative 
Price of Sugarcane in the Country"  
JE-43 Essential Commodities Act  The Essential Commodities Act 1955  
JE-44 Sugar (Control) Order, 1966  The Sugar (Control) Order 1966  
JE-45 Sugarcane (Control) Order  The Sugarcane (Control) Order 1966 (Amended to 2013)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
- 12 - 
 
  Exhibit 
No. Short title  Title 
JE-47 "Govt keeps cane FRP unchanged 
at Rs 230 per qtl for 2016 -17", 
India Today, 6 April 2016  India Today, "Govt keeps cane FRP unchanged at Rs 230 
per qtl for 2016 -17", 6 April 2016  
JE-48 - Practical Action technical brief: Sugar Prod uction from 
Sugar Cane  
JE-49 - Judgement of the Supreme Court of India, U.P. Co -
operative Cane Unions Federations v. West U.P. Sugar 
Mills Association & Ors. Etc ., 5 May 2004  
JE-50 Bihar Sugarcane Act  Bihar Sugarcane (Regulation of Supply and Purchase) Act 
1981 
JE-52 CACP Price Policy for Sugarcane: 
2018-19 Sugar Season  CACP, Price Policy for Sugarcane (2018 -19 sugar 
season), August 2017  
JE-53 CACP Price Policy for Sugarcane: 
2019-20 Sugar Season  CACP, Price Policy for Sugarcane (2019 -20 sug ar 
season), August 2018  
JE-54-B Notification by the Bihar 
Government, 24 November 2016 
(English translation)  Notification No. 2 -02/2007 -2316 of the State government 
of Bihar, 24 November 2016 (English translation)  
JE-55 - Riga Sugar Company Limited, Annual Report 2018 -19 
JE-56 Haryana Amendment Ac t; or 
Haryana Sugarcane Act  Punjab Sugarcane (Regulation of Purchase and Supply) 
Haryana Amendment Act 2004  
JE-57 Haryana Sugarcane Rules  Haryana Sugarcane (Regulation of Purchase and Supply) 
Rules 1992  
JE-58 State of Haryana, Budget 
2019-20: Explanatory 
Memorandum  Finance Department of the State of Haryana, Budget 
2019-20: Explanatory Memorandum on Welfare and 
Development Schemes  
JE-59 Punjab Sugarcane Act  Punjab Sugarcane (Regulatio n of Purchase and Supply) 
Act 1953  
JE-60 Punjab Sugarcane Rules  Punjab Sugarcane (Regulation of Purchase and Supply) 
Rule 1958  
JE-61 Notification by the Punjab 
Government, 28 November 2019  Notification of the State Government of Punjab, SAP for 
the 2018/19 season, 28 November 2019  
JE-62  Order of 14 January 2015  Order G.O.(Ms).No.15 of the Agriculture (S1) Department 
of the Government of Tamil Nadu of 14 January 2015  
JE-63 Order of 11 January 2016  Order G.O.(Ms).No.20 of the Agriculture (S1) Depart ment 
of the Government of Tamil Nadu of 11 January 2016  
JE-64 Order of 5 January 2017   Order G.O.(Ms).No.5 of the Agriculture (S1) Department 
of the Government of Tamil Nadu of 5 January 2017  
JE-65 - Tamil Nadu Sugarcane (Regulation of Purchase Price) Act 
2018 
JE-67 Tamil Nadu Sugarcane Act  Tamil Nadu Sugar Factories Control Act 1949  
JE-68 Uttar Pradesh Sugarcane Act  Uttar Pradesh Sugarcane (Regulation of Supply and 
Purchase) Act 1953  
JE-69-B Notification of 1 December 2018 
(English translation)  Notification No. 24/2018/2077/46 -3-18-3(48)/98 -99 of 
the State government of Uttar Pradesh, 1 December 
2018 (English translation)  
JE-70-B Notification of 26 October 2017 
(English translation)  Notifica tion No. 2489/46 -3-17-3(48)/98 -99 issued by the 
Sugar Industry Section -3, Government of Uttar Pradesh, 
26 October 2017 (English translation)  
JE-71 Uttarakhand Amendment Act  Uttarakhand Sugarcane (Regulation of Supply and 
Purchase) (Amendment) Act 2013  
JE-72-B Notification of 20 December 2018 
(English translation)  Notification 788/XIV -2/2018/07(6)/2013 of the State 
government of Uttarakhand, 20 December 2018 (English 
translation)  
JE-74 Notification of 5 October 2018  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 ( "Scheme 
for assistance to sugar mills ") 
JE-75 Notification of 9 May 2018  Notification No. 1(5)/2018 -S.P.-I of the Ministry of 
Consumer Affairs, Food & Public Distribution, Department 
of Food & Public Distribution of 9 May 2018  
JE-76 Notification of 2 December 2015  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  
JE-77 Notification of 31 July 2019  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  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
- 13 - 
 
  Exhibit 
No. Short title  Title 
JE-78 Notification of 15 June 2018  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  
JE-85 Andhra Pradesh Budget Estimates 
for the 2018 -19 financial year  The State of Andhra Pradesh 's Budget Estimates 2018 -19 
for Industries and Commerce Department  
JE-86 Andhra Pradesh Budget Estimates 
for the 2015 -16 financial year  The State of Andhra Pradesh’s Budget Estimates 2015 -16 
for Industries and Commerce Department  
JE-88 Order of 17 September 2018  Notification of the Agriculture Department of the State 
government of Tamil Nadu of 17 September 2018  
JE-89 Budget Speech of 15 March 2018  Speech of Thiru O. Panneerselvam, Hon’ble Deputy Chief 
Minister, Government of Tamil Nadu, presenting the 
Budget for the year 2018 -2019 to the Legislative 
Assembly on 15th March 2018  
JE-90 Karnataka Budget Estimates for 
the 2019 -20 financial year  The State government of Karnataka 's Detailed Budget 
Estimates of Expendit ure for the year 2019 -20 
JE-107 MIEQ Order of 28 March 2018  DFPD Order of 28 March 2018, "Allocation of sugar 
factory -wise Minimum Indicative Export Quotas (MIEQ) 
under tradable export scrip schemes " 
JE-108 MIEQ Order of 28 September 
2018 DFPD Order of 2 8 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 schemes " 
JE-109 MIEQ Order of 18 September 
2015 
 DFPD Order of 18 September 2015, "Allocation of sugar 
factory -wise Minimum Indicative Export Quotas (MIEQ) 
under tradable export scrip schemes " 
JE-111 Notification of 9 May 2018  Notification No. 1(4)/2018 -S.P.-I of the Ministry of 
Consumer Affairs, Food & Public Distribution, Department 
of Food & Public Distribution of 9 May 2018  
JE-112 Notification of 31 December 2018  Notification No. 1(6)/2018 -SP-I of the Ministry of 
Consumer Affairs, Food & Public Distribution, Department 
of Food & Publi c Distribution of 31 December 2018  
JE-113 Cabinet Committee on Economic 
Affairs Announcement of Sugar 
export policy for evacuation of 
surplus stocks during sugar 
season 2019 -20 CCEA, "Cabinet approves Sugar export policy for 
evacuation of surplus stocks d uring sugar season 2019 -
20: about 60 lakh tons sugar to be exported this financial 
year", 28 August 2019  
JE-114 Notification of 1 2 September 
2019  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  
JE-115 MAEQ Order of 16 September 
2019 Notification F.No.1(14)/2019 -SP-I of the Ministry of 
Consumer Affairs, Food & Public Distribution, Department 
of Food & Public Distribution of 16 September 2019  
JE-118 World Customs Organization, HS 
Nomenclature 2017 edition  World Customs Organization, HS Nomenclature, 2017 
edition,  
http://www.wcoomd.org/en/topics/nomenclature/instrum
ent-and-tools/hs -nomenclature -2017-edition/hs -
nomenclature -2017-edition.aspx  
JE-121 Notes on Demands for Grants, 
2019-2020 The Central Government of India 's 2019 -20 Expenditure 
Budget  
JE-134 Andhra Pradesh Budget Estimates 
for the 2016 -17 financial year  The State of Andhra Pradesh 's Budget Estimates for 
Industries and Commerce Department 2016 -2017 
JE-135 Andhra Pradesh Budget Estimates 
for the 2017 -18 financial year  State of Andhra Pradesh 's Budget Estimates for 
Industries and Commerce Department 2017 -18 
JE-136 Order of 7 March 2019  Government of Tamil Nadu, Agriculture (S1) Department, 
Order G.O.(Ms) No.61, 7 March 2019  
JE-137 Tamil Nadu Budget Publication for 
the 2019-2020 financial year  The State of Tamil Nadu 's 2019 -2020 Budget publication - 
Industries Department  
JE-139 Cane Commissioner's Annual 
Report, 2017 -18  Annual Report of the Commissioner for Cane 
Development and Director of Sugar for the Year 2017 -18 
JE-140 -  Directorate of Sugarcane Development, Sugarcane in 
India: State wise Production  
JE-141 - Department of Agriculture & farmers Welfare, 1st 
advance estimates for 2019 -20 
JE-142 Notes on Demands for Grants, 
2020-2021 Expenditure Budget 2020 –2021 for the Dep artment of 
Food and Public Distribution, Ministry of Consumer 
Affairs, Food and Public Distribution  
JE-146 Andhra Pradesh Budget Estimates 
for the 2019 -20 financial year  State of Andhra Pradesh 's Budget Estimates for 
Industries and Commerce Department 201 9-20 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
- 14 - 
 
  Exhibit 
No. Short title  Title 
JE-147 MOSPI, National Accounts 
Statistics 2020, Statement 8.1.2 
Crop-wise value of output  Ministry of Statistics and Programme Implementation 
(MOSPI), National Accounts Statistics 2020, Statement 
8.1.2 Crop -wise value of output  
JE-148 Sugarcane (Control) Order 1966 
(prior to 2009)  The Sugarcane (Control) Order 1966 (prior to 2009)  
JE-149 - Dhampur Sugar Mills Limited Annual Report 2019 -20 
JE-156 - Chairman 's note on options in the agricultural 
negotiations, MTN.GNG/AG/W/1/Add.4  
JE-157 - Balrampur Chini Mills Limited Annual Report 2019 -20 
JE-158 - Avadh Sugar & Energy Limited Annual Report 2019 -20 
JE-159 International Chamber of 
Commerce (ICC), Incoterms 
Rules  International Chamber of Commerce (ICC), Incoterms 
Rules, Rules for any mode or modes of transport  
JE-160 - Tender Notice for Export of Sugar (Jawahar S.S.S.K. Ltd)  
JE-161 - Tender Notice for Sale of Raw Sugar or White Sugar for 
Export (Shree Datta S.S.S.K. Ltd)  
JE-162 - HPCL Biofuels Ltd Sugar Export Contracts Specifications  
JE-163 - Reuters, "Indian sugar mills clinch export deals as prices 
jump – industry ", 7 January 2021  
JE-164 - Reuters, "Indian sugar exports poised to hit record 5 
million tonnes this year ", 17 December 2019  
JE-165 Consultancy Report, February 
2021 Green Pool Commodity Specialists, Consultancy Report, 
February 2021  
 
JE-167 CACP Price Policy for Sugarcane: 
2020-21 Sugar Season  CACP, Price Policy for Sugarcane (2020 -21 sugar 
season), November 2019  
JE-168 MOSPI, National Accounts 
Statistics Sources and Methods 
2007, Chapter 9  National Accounts Statistics Sources and Methods 2007, 
Chapter 9  
JE-169 Tamil Nadu Policy Note 2020 -21  Agriculture Department of the Government of Tamil 
Nadu, Policy Note 2020 -2021 
JE-170 - Andhra Pradesh Budget Manual  
JE-172 - Karnataka Budget Manual  
JE-173 Karnataka Budget Estimates for 
the 2020 -21 financial year  Karnataka Detailed Budget Estimates of Expenditure – 
Demand -wise for the Year 2020 -21, Volume 6  
 
 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
- 15 - 
 
  ABBREVIATIONS USED IN THESE REPORT S 
Abbreviation  Description  
AAP Applied Administered Price  
AMS Aggregate Measurement of Support  
CACP  Commission for Agricultural Costs and Prices  
DFIA Duty Free Imports Authorisation  
DFPD  Department of Food and Public Distribution  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
FERP Fixed External Reference Price  
FRP Fair and Remunerative Price  
GATT 1994  General Agreement on Tariffs and Trade 1994 
HS Harmonized System  
INR Indian Rupees  
MAEQ  Maximum Admissible Export Quantity  
MIEQ  Minimum Indicative Export Quotas  
MMTC Metals and Minerals Trading Corporation of India Limited  
MOSPI  Ministry of Statistics and Programme Implementation  
MPIA Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU  
QEP Quantity of Eligible Production  
SAP State -Advised Price  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
SCM Committee  Committee on Subsidies and Countervailing Measures  
Vienna Convention  Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 UNTS 
331; 8 International Legal Materials 679  
WTO World Trade Organization  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
- 16 - 
 
  1  INTRODUCTION  
1.1  Complaint by Brazi l 
1.1.  On 27 February 2019 , Brazil  requested consultations with India pursuant to Articles 1 and 4 of 
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) , Article 19 
of the Agreement on Agriculture, and Article XXII:1 of the Gen eral Agreement on Tariffs and Trade 
1994 (GATT 1994), w ith respect to the measures and claims set out below.1 
1.2.  Consultations were held on 15 April 2019  but failed to resolve the dispute.  
1.2  Complaint by Australia  
1.3.  On 1 March 2019, Australia requested consultations with India pursuant to Articles 1 and 4 of 
the DSU , Article 19 of the Agreement on Agriculture , Articles 4 and 30 of the Agreement on Subsidies 
and Countervailing Measures (SCM Agreement), and Article XXII:1 of the GATT 1994 , with respect 
to the measures and claims set out below.2 
1.4.  Consultations were held on  16 April 2019  but failed to resolve the dispute.  
1.3  Complaint by Guatemala  
1.5.  On 15 March 2019, Guatemala requested consultations with India pursuant to Article 4 of the 
DSU, Article 19 of the Agreement on Agriculture , Articles 4 and 30 of the SCM Agreement, and 
Article  XXII of the GATT 1994,  with respect to the measures and claims set out below.3 
1.6.  Consultations were held on 22 May 2019  but failed to resolve the dispute.  
1.4  Panel establishment and c omposition  
1.7.  On 11 July 2019 , Brazil, Australia , and Guatemala  each requested the establishment of a panel 
pursuant to Article  6 of the DSU with standard terms of reference.4 At its meeting on 
15 August  2019, the Dispute Settlement Body (DSB) established three panel s pursuant to the 
request s of Brazil, Australia, and Guatemala  in document s WT/DS 579/7, WT/DS580/ 7, and 
WT/DS581/8, respectively,  in accordance with Article  6 of the DSU.5 
1.8.  The Panels ' terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Brazil  in document 
WT/DS 579/7  and to make such findings as will assi st the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.6 
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Austr alia in document 
WT/DS 580/7  and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.7 
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Guatemala  in document 
 
1 See WT/DS579/1, G/AG/GEN/151, G/L/1298.  
2 See WT/DS580/1, G/L/1299, G/AG/GEN/152, G/SCM/D124/1.  
3 See WT/DS581/1, G/AG/GEN/153, G/SCM/D125/1, G/L/1302.  
4 WT/DS579/7, WT/DS580/7, and WT/DS581/8.  
5 See WT/DSB/M/43 3. 
6 WT/DS579/8.  
7 WT/DS580/8.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
- 17 - 
 
  WT/DS 581/8  and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.8 
1.9.  On 16 October 2019, Br azil, Australia, and Guatemala  requested the Director -General to 
determine the composition of the Panels, pursuant to Article 8.7 of the DSU . On 28 October 2019 , 
the Director -General accordingly composed three Panel s, of the same persons,  as follows : 
Chairperson:  Mr Thomas Cottier  
 
Members:   Ms Gerda Van Dijk  
   Mr Roberto Zapata Barradas  
 
1.10.  Canada, China, Colombia, Costa Rica, El Salvador, the European Union, Honduras, Indonesia, 
Japan, Panama, the Russian Federation, Thailand, and the United States reserved their rights to 
participate  as third parties  in all three Panel proceedings . In addition, each of the three complainants 
reserved its right to participate as a third party in the Panel proceedings initiated by the other two 
complainants.  
1.5  Panel proceedings  
1.5.1   General  
1.11.  The Panel9 held an organizational meeting with the parties on 22 November 2019.  
1.12.  After consulting  with the parties, the Panel adopted its Working Procedures10 and timetable s 
on 5 December 2019. Pursuant to Article 9.3 of the DSU, t he timetable s in the three disputes were 
harmonized . 
1.13.  Brazil, Australia, and Guatemala  ("the complainants" ) submitted their  first written 
submissions on 16 January 2020. India submitted its first written submission on 19 March 2020.  
1.14.  On 9 April 2020, the Panel received third -party submissions from Canada, Costa Rica, 
El Salvador, the European Union, and the United States.  
1.15.  The first substantiv e meeting of the Panel was postponed on several  occasions , due to the 
COVID -19 pandemic.11 In addition, while the first substantive meeting was postponed until further 
notice,  the Chairperson of the Panel informed the parties, on 9 June 2020, in accordance with the 
Rules of Conduct  for the Understanding on Rules and Procedures Governing the Settlement of 
Disputes , that he had been nominated by Switzerland to be included  in the p ool of arbitrators of the 
Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU (MPIA) . In this 
communication, t he Chairperson noted that the complainants, and certain third parties in these 
proceedings, were parties to the M PIA. In this connection, the Chairperson informed the parties of 
his intention to conduct himself, at all times, in a way that would fully respect  his personal 
independence  and impartiality  in his role as Chairperson, as well as  the confidentiality of these 
proceedings. In the interest of full transparency, t he Chairperson  invited the parties to raise any 
questions or concerns regarding  this matter . This was followed by a number of communications that 
took place between the Chairperson and the parties in the period between 9 June 2020 and 
1 October  2020.12 On 30 September 2020, India sent a final communication to the Chairperson, 
indicating  that, notwithstanding his MPIA appointment , India believed that the Chairperson would 
continue to discharge his functions independently and impartially. India also indicated its trust that 
 
8 WT/DS581/9.  
9 For the reader's convenience, the Panels in DS579, DS580, and DS581 are herein collectively ref erred 
to as the "Panel ". Additionally, any references to "this Report" or the Panel's "Report" should be understood to 
refer to the Panel's Final  (or, where applicable, Interim)  Reports in all three disputes.  
10 See the Panel's Working Procedures in Annex A -1. 
11 See section 1.5.2  below . 
12 In a communication dated 7 August 2020, the Chairperson informed the parties of his appointment , 
and his acceptance, to serve as an arbitrator under the MPIA.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
- 18 - 
 
  the proceedings would be conducted fairly and fully respecting India's due process rights as a 
developing country and as respondent in the present disputes.13 
1.16.  The Panel held its first substantive meeting with the parties on 8-11 December 2020 . A 
session with the third parties took place on  10 December 2020 . Prior to the substantive meeting, on 
9 November 2020, the Panel sent the parties a list of que stions to be answered orally at the meeting. 
Following the meeting, on 14 December 2020, the Panel sent written questions to the parties. 
Written r esponses to these questions were received on 14 January 2021.  
1.17.  The parties submitted their second written subm issions on 11 February 2021.  
1.18.  The Panel held its second substantive meeting with the parties on  23-25 March 2021 . Prior to 
the substantive meeting, on 8 March 2021, the Panel sent the parties a list of questions to be 
answered orally at the meeting. Following the meeting, on 26 March 202 1, the Panel sent written 
questions to the parties. On the same date, Guatemala sent three written questions to India. Written 
responses to the Panel's  questions were received on 22 April 2021. Written responses to Gua temala's 
questions were received on 29 April 2021.14 The Panel gave the parties an opportunity to comment 
on each other's responses. These comments were received on 12 May 2021.  
1.19.  On 3 June 2021, the Panel issued the descriptive part of its Report to the par ties. On 
22 July 2021, t he Panel issued its Interim Report to the parties. Following the interim review process, 
on 30 September 2021, t he Panel issued its Final Report to the parties.  
1.5.2   The Panel's  substantive meetings  held by remote means  
1.20.  The COVID -19 pand emic disrupted the Panel's work, resulting in a n overall  delay of seven 
months.15 In order to advance the proceedings, and in light of the requirements of Article 3.3 of the 
DSU, the Panel held its first and second substantive meetings by remote means. Parties  and third 
parties , as well as the Panel and  WTO Secretariat staff , participated in the meeting  remotely , via 
Cisco Webex videoconferencing technolog y. The Panel adopted additional working procedures for its 
first and second substantive meeting s, after consulting with the parties, as provided for in 
Article  12.1 of the DSU . 
1.21.  This section provides an overview of the process leading to the Panel's decision to conduct its 
first and second substantive meeting s remotely . 
1.5.2.1   First substantive meeting with the parties and third parties  
1.22.  The first substantive meeting of the Panel was  initially  scheduled for 12 -14 May 2020.  Due to  
the COVID -19 pandemic, Switzerland and other countries , including parties and third parties in these 
disputes, imposed restrictive measures on international travel and in -person gatherings. Moreover, 
on 3 April 2020, the Director -General informed WTO Memb ers and Observers that all WTO staff 
members (with the exception of on -site critical staff) were requested to work from home and that 
all meetings at the WTO were suspended until the end of  April 2020 .16 The suspension  of meetings 
among  delegates was  extended  on several occasions .17 It therefore appeared unlikely that the Panel 
 
13 India's communication regarding the Chairperson's MPIA appointment , 30 September 2020 , paras. 7 -8. 
14 On 28 April 2021, Guatemala requested that the Panel put on record India's lack of response to 
Guatemala's questions following the second substantive meeting.  India indicated th at it had inadvertently missed 
to submit its responses to Guatemala's questions and that, in any event, it "had clarified its position with respect 
to these questions during the second virtual meeting". (India's cover letter transmitting its responses to 
Guatemala's questions following the second substantive meeting of the Panel, 29 April 2021)  
15 Seven months passed between the dates on which the first substantive meeting w as originally scheduled 
to take place, and the dates on which the first substantive m eeting actually took place. See para s. 1.22 and 
1.30 below . 
16 Director -General Azevêdo's  communication to WTO Members and Observers, 3 April 2020.  
17 See e.g. D eputy Director -General  Brauner's communication to Heads of Delegation, 7 May 2020, 
confirming the suspension of meetings until the end of May 2020. This suspension was maintained through 
subsequent communications. As of 15 June 2020, meetings among delegates at the WTO premises were allowed, 
albeit subject to certain restrictions that have since been changing in light of the recommendations by Swiss 
authorities and the WTO Health Task Force . (See e.g. Deputy Director -General Brauner's communication to Heads 
of Delegation, 4 June 2020 ) WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  would be able to hold its first  substantive  meeting  as originally scheduled  with all parties and third 
parties physically present at the WTO premises.  
1.23.  On 9 April 2020, the Pane l proposed to the parties to conduct the first substantive meeting 
through a written procedure.  The complainants agreed with the proposal , arguing it would be 
consistent with the DSU and would not prejudice the rights of the parties or third parties .18 India 
disagreed  and requested that the meeting be postponed until conditions would permit in-person 
gatherings. India argued  that conducting the meeting through a written procedure amidst the 
COVID -19 crisis would undermine India's due process rights and limit its ability to meaningfully 
participate , and defend itself adequately , in the proceedings.19 
1.24.  Following another round of comments by the parties20, and the receipt of comments by  the 
third parties21, the Panel  decided , on 4 May 2020 , to postpone its first substantive meeting until 
further notice.  To facilitate its work on the dispute s, on 25 May 2020,  the Panel sent questions to 
the parties concerning certain factual and legal issues, pursuant to paragraph 9 of the Working 
Procedures a nd Article 13 of the DSU. The Panel indicated that t hese questions did not substitute 
the first substantive meeting. The parties submitted written r esponses to those questions on 
18 June 2020.  
1.25.  On 2 October 2020, given the continuing health risks resulting from the COVID -19 pandemic  
and the travel  restrictions imposed by Switzerland  and other countries,  including parties and third 
parties in these disputes, the Panel proposed two further options to the parties .22 The first option 
envisaged  holding two substantive meetings, whereby the first meeting would be held in a "hybrid" 
format , with delegates attending the meeting either virtually or from a designated room at the WTO 
premises. The second option envisaged hol ding a single  substantive meeting , also in a "hybrid" 
format.  
1.26.  On 9 October 2020, the complainants submitted that both options were consistent with the 
DSU, and therefore acceptable  to them  and open to the Panel . The complainants preferred to proceed 
with a  single meeting , on the grounds that  it would be most efficient for the resolution of the disputes 
in light of the long delay already caused by the pandemic , while also preserving the parties' due 
process rights .23 India disagreed with both options.  India asserted , inter alia , that an oral hearing in 
the physical presence of panelists and parties' representatives is a fundamental aspect of a party's 
due proce ss rights  and an indispensable part of the WTO dispute settlement process,  which cannot 
be altered without the parties' agreement.  India recognized the objective of prompt settlement of 
disputes under  Article 3.3 of  the DSU but contended that this objective should not be used to 
interpret  the DSU  in a way that un dermined India's  due process rights.  In India's view , the DSU 
envisages the conduct of substantive meetings in the physical presence of all parties  and "a hearing 
through video conferencing is not a substantive meeting as envisaged under the DSU".24 India also 
asserted that  conducting  such a meeting  would pose  serious technical and logistical difficulti es, as 
well as certain coordination limitation s between Indian Central and State Government officials , and 
its legal representatives. According to India, a "hybrid " meeting  would  not permit effective 
communication between the participants  and would impair India's ability to present its case .25 
1.27.  On 16 October 2020, after careful consideration of the parties' arguments, the Panel decided 
to hold two  substantive  meetings , with the first meeting  to be held in a "hybrid " format . The Panel  
 
18 Complainants' comments on the Panel's alternative propo sal, 17 April 2020.  
19 India's comments on the Panel's alternative proposal , 17 April 2020.  
20 Complainants' further comments regarding  the Panel's alternative proposal , 23 April 2020; India's 
further comments regarding  the Panel's alternative proposal , 28 April 2020.  
21 A day before the deadline, o n 30 April 2020, the European Union submitted  comments on the Panel's 
alternative proposal.  On 1 May 2020, Canad a and the United States  also submitted their respective comments . 
22 Throughout these proceedings, the Panel closely monitored the evolving sanitary situation, as well as 
the restrictions on international travel, and communicated with the parties regarding the impact of such 
restrictions on the proceedings.  (See e.g. Pa nel's communications to the parties , 14 July 2020; and 
7 August  2020 (in response to the complainants' communication, 31 July 2020))  
23 Complainants' comments on the Panel's two alternative options, 9 October 2020, p. 2.  
24 India's comments on the Panel's tw o alternative options , 9 October 2020, par a. 7. 
25 India's comments on the Panel's two alternative options , 9 October 2020, paras. 9 -10. WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  proposed  specific  dates , and the adoption of draft additional working procedures , for the first 
substantive meeting.26 
1.28.  On 28 October 2020, the complainants agreed with the proposed dates for the first 
substantive meeting , as well as the draft additional working procedures , and provided  comments  
relating to  the arrangements of the meeting and the draft additional working procedures . India 
maintain ed its position  that it was unable to agree to a "hybrid " procedure  and again raised several  
concerns relating to India's due process rights  and the confidentiality of the procedure.  Taking into 
account the parties' comments  provided on 28 October 2020 , in particular India's contention that a 
"hybrid" meeting would be "inequitable"27, due to the nature of the travel restrictions, and in light 
of the limitation imposed by Swiss authorities  on in-person  gatherings (limiting suc h events to a 
maximum of five people ), the Panel decided to hold its meeting in a fully virtual  format  during the 
week of 23 November 2020  and adopted Additional Working Procedures for the Panel's First 
Substantive Meeting to be Held by Remote Means  ("Addi tional Working Procedures  regarding the 
Panel's  first meeting ").28 To ensure  that the parties had sufficient opportunity to effectively prepare 
and present their cases, the Panel also decided to send advance questions to the parties 10 working 
days before the start of the meeting.  Moreover, t he Panel decided that it would not pose any 
additional questions at the meeting, in order to provide maximum clarity as to the scope of the 
discussions at the meeting, but indicated that it might  send written questions  to the parties and 
third parties after the conclusion of the meeting.  The Panel conveyed and explained these decision s 
to the parties in a communication dated 2 November 2020.29 
1.29.  On 4 November 2020, India sent a communication to the Panel  seeking clarifica tion on two 
issues with respect  to the confidentiality of the first substantive meeting . In the same 
communication, India requested that the Panel reconsider the dates for the first substantive meeting 
and postpone it by two more weeks . India based its request for postponement of the meeting on 
two grounds: (i) due to India's public holidays, several key officials of its Central and State 
Governments ( specifically , the State of Uttar Pradesh and the State of Bihar ) involved in these 
dispu tes, would be on leave at the time of the meeting, and (ii) a key member of its delegation was 
infected with COVID -19 and would need time to fully recover in order to attend the meeting.  In a 
communication dated  6 November 2020 , the Panel addressed India's  confidentiality  queries and 
declined the request to postpone the meeting.30 
1.30.  On 17 November 2020, India once again requested the Panel to postpone the meeting 
because a key member of its delegation, who was indispensable  for the substantive , as well as 
logistical and organizational aspects of the meeting, had contracted the COVID -19 virus and was not 
able to participate in the Panel's meeting. On  18 November 2020,  the Panel postponed the first 
substantive  meeting  by two more weeks , i.e. to the week of 7 December 2020 . The Panel stated  
that the purpose of the postponement was to allow time  for India and all other parties and third 
parties to make alternative arrangements in case any delegate would be unable to participate at the 
meeting due to health reasons.31 
1.31.  Prior to the first substantive meeting, consistent with paragraph 7 of the Additional Working 
Procedures  regarding  the Panel's  first meeting , the parties and third parties conducted individual 
test sessions with the WTO Secretariat. Th ose sessions were aimed at demonstrating the use of the  
Cisco Webex  platform and detecting any technical issues in advance of the meeting. In addition, on 
7 December 2020, the Panel convened a joint test session with all participants  from the parties and 
third parties . The purpose of the joint test session was to reflect, as far as possible, the conditions 
of the meeting.  The test sessions were conducted successfully and did not reveal  any technical 
problems that could affect the conduct of the meeting.  
 
26 See the Panel's communication dated 16 October 2020 in Annex D -1. Following a communication by 
India dated 20 October 2020, the Panel, on the same day, extended the deadline for the parties' comments on 
the proposed dates , and  draft additional working procedures for the first substantive meeting, to 
28 October  2020.  
27 India's comments regarding the first substantive meeting and additional working procedures, 
28 October 2020, paras. 5 -9. 
28 See the Panel's Additional Working Procedures regarding the Panel's first meeting in Annex A -2. 
29 See the Panel's communication dated 2  November 2020 in  Annex D -2. 
30 See the Panel's communication dated 6 November 2020 in Annex D -3. 
31 See the Panel's communication dated 18 November 2020 in Annex D -4. WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  1.32.  On 8 December 2020, as provided for in paragraph 15 of its Working Procedures, the Panel 
began it s meeting by inviting the complainants to deliver their opening statements. The following 
day, the  Panel invited India to  deliver its  opening statement . Thereafter, the parties  provided oral 
responses to the Panel's advance questions . They also made comments on each other's responses 
to the  Panel's  advance questions . The parties were invited to ask any questions to each other , which 
they preferred not  to do. The third -party session was held on 10 December 2020 . Canada, China, 
the European Union , and Japan made oral statement s at the third -party session. The parties were 
invited to ask questions to the third parties , which they preferred not to  do. India made certain 
comments , through the Panel,  on China's oral statement , to which China responded.  On the final 
day of the meeting, 11 December 2020, the parties presented their closing statements . 
1.5.2.2   Second substantive meeting with the parties  
1.33.  The Panel scheduled its second substantive meeting for the week of 22 March 2021.  
1.34.  On 12 February 2021, as the public health conditions had not improved since the first 
substantive meeting, an d in light of the continuing restrictive measures on internationa l travel and 
in-person  gatherings, the Panel proposed to the parties to hold the second substantive meeting in 
the same  format  as the first substantive meeting  (i.e. remotely, via Cisco Webex ). The complainants 
agreed  with the Panel's proposal .32 India con tinued to object on the same grounds as those raised 
in connection with the first  substantive  meeting and pointed to the possibility of international travel 
restrictions  being relaxed.33 
1.35.  On 23 February 2021, having considered  the parties' comments and the existing public health 
situation, the Panel decided to hold its second  substantive  meeting in a virtual format  and adopted 
Additional Working Procedures for the Panel's Second Substantive Meeting to be Held by Remote 
Means.34 The Panel also decided to send advance questions to the parties 10 working days before 
the meeting.  Moreover , the Panel decided not to ask any additional questions at the meeting but  
indicated that it might send written questions  to the parties  after the conclusion of the meeting. In 
reaching its decision s regarding the format and conduct of the second substantive  meeting, the 
Panel  was guided by the same  considerations as for the first substantive meeting . 
1.36.  Similar to the first substantive meeting, in addi tion to  the individual test sessions conducted 
by the WTO Secretariat with each party, the Panel held a joint test session with all participants  on 
22 March 2021 . The test sessions were conducted successfully and did not reveal  any technical 
problems that could affect the conduct of the meeting.  On 23 March 2021, the parties delivered their 
opening statements. The complainants presented their statements , followed by India.35 Guatemala 
provided comments on India's opening stateme nt to which India responded. On 24 March 2021, the 
parties provided their oral responses to the Panel's advance questions. On the final day of the 
meeting, 25 March 2021, the parties completed  their oral responses to the advance questions. The 
parties also  made  comments on certain of the parties' respective responses to the Panel's advance 
questions . Finally, the parties delivered their closing statements.  
1.5.3   Preliminary ruling  
1.37.  In its first written submission, India asked the Panel to issue a preliminary rulin g finding  that 
certain measures challenged by the complainants  fell outside the Panel's terms of reference  because 
they expired before, or were enacted after, the date of the Panel's establishment.36 
1.38.  On 1 April 2020, the complainants responded to India's request for a preliminary ruling. On 
8 April 2020, the United States submitted its third-party comments  on India's request for a 
prelimina ry ruling.  El Salvador and the European Union  included  their third-party comments in their  
written submissions , which were submitted on 9 April 2020.  
 
32 Complainants' comments on the Panel's proposal for the second substantive meeting, 
19 February  2021.  
33 India's comments on the Panel's proposal for the second substantive meeting, 19 February 2021.  
34 See the Panel's Additional Working Procedures regarding the Panel's second meeting in Annex A -3. 
35 India did not avail itself of t he right provided under paragraph 16 of the Panel's Working Procedures to 
deliver its opening statement first at the second substantive meeting of the Panel.  
36 India's first written submission, para.  32. WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  1.39.  On 13 April 2020, India sought an opportunity from the Panel  to comment on the 
complainants ' and third parties' comments concerning its request for a preliminary ruling . 
On 17 April 2020, the complainants indicated, at the Panel's invitation, that if the Panel grant ed 
India's request, it should also give the complainants a further opportunity to comment on India's 
comment s. On 20 April 2020, the Panel granted all parties and third parties a final opportunity to 
comment  on India's request for a preliminary ruling . 
1.40.  On 27 April 2020, India submitted  comment s on the complainants ' and third parties' 
comments concerning  its reque st for a preliminary ruling . On 4 May 2020, the complainants 
submitted their further comments . On 8 May 2020,  Costa Rica submitted comments on India's 
request. On 11 May 2020 , El Salvador  provided further comments on India's request .37 
1.41.  On 9 November 2020 , the Panel issued to the parties and third parties the first part of its 
preliminary ruling regarding  the allegedly expired measures , including the Panel's reasoning . The 
Panel  found that the elements which India had identified as "measures"  that had expired , were in 
fact part of the  legal instruments that, in the complainants ' view, implemented  the challenged 
measures. Therefore, the Panel  rejected India's request to find that the identified "measures"  fell 
outside its terms of reference . The Panel d ecided to examine the relevance and probative value of 
these legal instruments as part of its substantive assessment of the complainants' claims . 
1.42.  On 14 December 2020 , the Panel issue d to the parties its finding  with respect to the second 
part of India's request for a  prelimina ry ruling , regarding  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 tran sport and freight charges on export of sugar" 
(the Marketing and Transportation Scheme), which was  enacted  after the Panel's establishment . The 
Panel rejected India's request and  found that th e Marketing and Transportation Scheme  fell within  
its terms of r eference . The Panel  informed the parties that the reasoning for this finding would  be 
included in the Interim  Report.  
1.43.  The first and second parts of the Panel's preliminary ruling are set out in  Annex es E-1 and 
E-2, respectively . 
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  The claims brought by the complainants concern India's  alleged  domestic support to sugarcane  
producers  and export subsidies pertaining to sugar  or sugarcane . 
2.1.1   India's alleged domestic support to sugarcane  producers  
2.2.  The complainants argue that India maintains mandatory minimum  prices for sugarcane, as well 
as other payments and policies in favour of sugarcane producers.  
2.3.  Regarding the mandatory minimum prices for sugarcane, the complainants submit that India 
provide s domestic support, in the form of market price support , to sugarcane producers  through  the 
following  measures, which are implemented through a number of legal instruments : 
i. The "Fair and Remunerative Price" (FRP), maintained by the Indian Central 
Government , which requires Indian purchasers of sugarcane to pay a mandatory  
minimum price to the sugarcane producers . The FRP is allegedly determined by the 
Central Government  annually , based on the recommendations of the Commission for 
Agricultural Costs and Prices (CACP)38; 
ii. A number of "State -Advised Prices" (SAPs), maintained  by certain Indian State 
Governments39, which require purchasers of sugarcane to pay a mandatory minimum 
 
37 El Salvador submitted its comments after the deadl ine set by the Panel.  
38 Brazil's first written submission, paras. 25 -34 and 134 -155; Australia's first written submission, 
paras.  23-39 and 166 -173; Guatemala's first written submission, paras. 37 -50 and 137 -165. 
39 The complainants challenge the SAPs maintained by six States, namely Bihar, Haryana, Punjab, Tamil 
Nadu, Uttar Pradesh, and Uttarakhand.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  price to the sugarcane producers  of the specific state.  The SAPs are  allegedly 
determined by the State Government s on an annual basis  and are higher than the FRP . 
According to the complainants, w here an SAP is applied, purchasers are required to 
pay the SAP instead of the FRP40; and 
iii. A number of policies and payments provide d by the Central Indian Government and 
certain State Governments that allegedly operate to assist sugarcane purchasers in 
paying the mandatory minimum price for sugarcane.41 
2.4.  In addition to market price support, the complainants submit that India provid es domestic 
support  to sugarcane  producers in the form of non-exempt direct payments and other policies . 
Specifically, the complainants refer to42: 
i. Tamil Nadu's transitional production incentives  in favour of sugarcane producer s, for 
which the Tamil Nadu State Government budgeted certain amounts under the entry 
"Production Incentive to Sugarcane Farmers" for the sugar seasons 2017 -18 and 
2018-1943; 
ii. Andhra Pradesh's purchase tax remittance s in favour of sugarcane producers, for w hich 
the Andhra Pradesh State Government budgeted certain amounts under the entry 
"Assistance to Co -operative Sugar Factories towards reimbursement of Purchase Tax 
incentives" for the sugar seasons 2014 -15 and 2015 -1644; and  
iii. Karnataka's incentive price pay ments in favour of sugarcane producers , for which the 
Karnataka State Government budgeted certain amounts under the entry "Payment of 
Incentive Price for Sugar Cane through Sugar Factories. Subsidies"  for the sugar 
season 2017-18.45 
 
40 Brazil's first written submission, paras. 35 -48 and 156 -160; Australia's first written submission, 
paras.  41-61 and 1 74-180; Guatemala's first written submission, paras. 51 -72 and 137 -165. 
41 Brazil's first written submission, paras. 161 -162 and Appendix A; Australia's first written submission, 
paras. 181 -185 and Annexes A, B, C, D -2, D-3 and E; Guatemala's first written submission, paras. 87 -96 and 
166-168. The complainants submit that these policies and payments  constitute measures through which India 
provides domestic support to sugarcane producers . (Brazil also  submits that these "support programs … 
constitute either non -exempt direct payments or other non -exempt policies". (Brazil's response to Panel question 
No. 21, para. 21) ) Nonetheless, the complainants  do not include them in their calculations of India's alleged 
market price support, because, in their view , they either constitute ( in the view of Australia and Guatemala), or 
"may" constitute (in the view of Brazil), "measures made to maintain  the price gap" within the meaning of  the 
second sentence of paragraph 8 of Annex 3 to the Agreement on Agriculture . Australia  is the only complainant 
that requests the Panel  to explicitly  identify them as "measures through which India is providing market price 
support above de minimis ". (See Australia's first written submission, para. 186)  
42 Brazil also considers that th e alleged support programs listed under paragraph 2.3(iii ) above 
constitute non -exempt direct payments or other non -exempt policies.  However, Brazil does not include  them 
in its calculation  of India's AMS . (See Brazil 's response to Panel question No . 21) 
43 Brazil's first written submission, para. 163 and A ppendix  B-2; Australia's first written submission, 
paras.  198-203 and Annex E -8; Guatemala's first written submission, paras. 81 -86 and 176 -179. See also 
complainants' responses to Panel question No. 73.  
44 Brazil's first written submission, para. 163 and Appendix  B-1; Australia's first written submission, 
paras.  190-194 and Annex E -1; Guatemala's first written submission, paras. 97 -99 and 180 -184. See also 
complainants' responses to Panel question Nos. 28, 50 and 74.  In the context of our preliminary ruling, found in 
Annex E -1 to this Report , the word "remission" is used in referring to this measure allegedly ma intained by 
Andhra Pradesh and similar measures maintained by certain other States in India.  
45 Brazil's first written submission, para. 163 and A ppendi x B-3; Australia's first written submission, 
paras.  195-197 and Annex E -5. See also complainants' respons es to Panel question Nos. 27, 75 -78. While 
Guatemala initially included Karnataka's alleged  "incentive price payments" in  its calculation of India's domestic 
support to sugarcane producers, it subsequently withdrew its assertions, and omitted the respectiv e amounts  
from its calculation.  (Guatemala's comments on India's response to Guatemala's question No. 3 ) WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  2.1.2   India's alleged export subsidies  
2.5.  The complainants identify the measures at issue as federal -level measures pertaining to sugar 
or sugarcane that provide subsidies contingent upon export performance, which are implemented 
through a number of legal instruments.46 
2.6.  The complainants challenge , as allegedly WTO-inconsistent subsidie s contingent upon export 
performance , three schemes  that operate in conjunction with  Minimum Indicative Export Quotas 
(MIEQs) or Maximum Admissible Export Quantit y (MAEQ) . The MIEQ and MAEQ orders allocate sugar 
export quotas to sugar mills on a per -mill basis . They are adopted  for each sugar season  by the 
Department of Food and Public Distribution ( DFPD ), a Central Government agency that is part of the 
Indian Ministry of Consum er Affairs, Food and Public Distribution.  
2.7.   Specifically, all complainants take issue with the following assistance schemes introduced by 
India:  
a. Production Assistance Scheme , which operates  in conjunction with the MIEQ47, 
implemented , inter alia , through:   
i. The "Scheme for extending production subsidy to sugar mills"  for the sugar season 
2015-16;  
ii. The "Scheme for Assistance to Sugar Mills " for the sugar season 2017 -18; and  
iii. The "Scheme for Assistance to Sugar Mills"  for the sugar season 2018 -19. 
b. Buffer Stock Scheme , which  operat es in conjunction with the MIEQ48, implemented , inter 
alia, through:  
i. The "Scheme for Creation and Maintenance of Buffer Stock of 30 Lakh MT ", introduced 
in 2018  ("Buffer Stock Scheme 2018") ; and 
ii. The "Scheme for Creation and Maintenance of Buffer Stock of 40 Lakh MT", introduced 
in 2019  ("Buffer Stock Scheme 2019") . 
c. Marketing and Transportation Scheme , which operates in conjunction with the MAEQ .49 
2.8.  In addition, Australia takes issue with  the Duty Free Imports Authorisation (DFIA)  Scheme .50 
 
46 Brazil's panel request, para. 14; Australia's panel request, para. 19, and para. 9 of Annex A thereto; 
Guatemala's panel request, para. 9, and para. 9 of the Annex thereto.  A detailed description of the measures at 
issue, and the complainants' requests fo r findings with respect to export subsidies, is set forth in section 7  of 
this Report.  
47 Brazil's first written submission, paras. 200 -204, 214 -222 and response to Panel question No. 79; 
Australia's first written submission, para. 2 30 and Annex A; Guatemal a's first written submission, 
paras.  208-219. 
48 Brazil's first written submission, paras. 205 -213 and response to Panel question No. 79; Australia's first 
written submission, paras. 231 -233 and Annex C; Guatemala's first written submission, paras. 220 -233 and 
response to Panel question No. 80.  
49 Brazil's first written submission, paras. 223 -229; Australia's first written submission, para. 234 and 
Annex D -3; Guatemala's first written submission, paras. 234 -241. 
50 Australia's first written submission, para . 235 and Annex F.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1  Brazil  
3.1.  Brazil requests that t he Panel find that India provides  domestic support to sugarcane producers 
that exceeds  the de minimis level of 10% of the total value of sugarcane production, and therefore 
acts inconsistently with its obligations under Article 7.2(b) of the Agreement on Agriculture .51 
3.2.  Brazil also  requests that the Panel find that India provides 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 .52 
3.3.  Brazil  thus requests , pursuant to Article 19.1 of the DSU,  that the  Panel recommend that India 
bring its measures int o conformity with its obligations under the Agreement on Agriculture .53 
3.2  Australia  
3.4.  Australia requests that the Panel find that India provides domestic support to sugarcane 
producers that exceeds the de minimis  level of 10% of the total value of sugarcane production , 
contrary to India's obligations under Article 7.2(b) of the Agreement on Agriculture .54 
3.5.  Australia further  requests that the Panel find that India's Production  Assistance  and Buffer 
Stock Schemes,  operating in conjunction with the MIEQ  orders , the Marketing and Transportation 
Scheme, operating in conjunction with the MAEQ , and the  DFIA Scheme: (i) constitute export 
subsidies within the meaning of Article 9.1(a) of the Agreement 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 , with Articles  8 and 10.1  of the Agreement on Agriculture ; and (ii) constitute 
prohibited export subsidies that are inconsistent with India 's obligations u nder Articles 3.1(a) and 
3.2 of the SCM Agreement.55 
3.6.  Australia also requests that the Panel find that , by failing to notify any of its annual domestic 
support for sugarcane and sugar subsequent to 1995 –96, and its export subsidies since 2009 –10, 
India has acted inconsistently with its obligations 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  1994.56 
3.7.  Australia thus requests, pursuant  to Article 19.1 of the DSU, that the Panel recommend that 
India bring its measures into conformity with its obligations under the Agreement on Agriculture , 
the SCM Agreement, or the GATT 1994 , as reflected above . With respect  to the export subsidies 
prohibited under  Article  3.1(a) of the SCM  Agreement, Australia further requests that the Panel, 
 
51 Brazil's second written submission, para. 151.  In its first written submission, in addition to the claim 
under Article 7.2(b), Brazil raised an alternative claim under Articles 3.2 and 6.3 of the Agreement on Agricultur e. 
(Brazil's first written submission, para. 232 ) In its second written submission , Brazil stated that the Panel need 
not address Brazil's alternative claim  because "India agrees that its Schedule contains no Total AMS 
commitment ". (Brazil's second written  submission,  fn 22 to para. 9 (referring to India 's response to Panel 
question No. 46),  and fn 25 to para. 10  (referring to Brazil and India's responses to Panel question No. 15(b)))  
52 Brazil's first written submission, para. 233. According to Brazil, the following schemes constitute 
prohibited export subsidies: (i) Scheme for assistance to sugar mills for the 2018 -19 sugar season; (ii) Scheme 
for creation and maintenance of buffer stock in 2018; (iii) Scheme for creation and maintenance of buffer stock 
in 2019; (iv) Scheme for assistance to sugar mills for the 2017 -18 sugar season; (v)  Scheme for extending 
production subsidy to sugar mills for the 2015 -16 sugar season; and (vi) the Marketing and Transportation 
Scheme. (Brazil's second written submission, pa ras. 82 -83; response to Panel question No. 79)  
53 Brazil's first written submission, para. 234.  
54 Australia's second written submission, para. 235. In its first written submission, in addition to the claim 
under Article 7.2(b), Australia raised an alternati ve claim under Articles 3.2 and 6.3 of the Agreement on 
Agriculture. (Australia's first written submission, para. 468. See also Australia's response to Panel question 
No. 15) At the first substantive meeting, Australia asserted that, since India agreed that it has no Total AMS 
commitment in its Schedule, there is "no dispute amongst the parties that India is bound by Article 7.2(b) of the 
Agreement on Agriculture and must n ot provide support to agricultural producers in excess of India's de minimis 
level". (Australia's closing statement at the first  substantive meeting of the Panel, para. 1 1) Thereafter, Australia 
did not include the alternative claims under Articles 3.2 and  6.3 in its list of findings requested from the Panel.  
55 Australia's first written submission, para. 468.  
56 Australia's first written submission, para. 468.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  consistent with Article  4.7 of the SCM  Agreement, recommend  that India withdraw them without 
delay within a time -period specified by the Panel.57 
3.3  Guatemala  
3.8.  Guatemala requests  that the Panel find that India  acts inconsistently with Article 7.2(b) of the 
Agreement on Agriculture  by providing domestic support that exceeds  the de minimis  level of 10% 
of the total value of sugarcane production .58 
3.9.  Guatemala further  requests that the Panel find that India's subsidies under the Production  
Assistance  and Buffer Stock Scheme s, which  operate in conjunction with the MIEQ s, and under  the 
Marketing and Transportation Scheme, which operates in conjunction with the MAEQ: (i) constitute 
export subsidies under Articles 9.1(a) and 9.1(c) of the Agreement on Agriculture , for which India 
did no t undertake reduction commitments, and thus violate  India's obligations under Articles 3.3, 8, 
and 9.1 of the Agreement on Agriculture ; and (ii) constitute prohibited export subsidies within the 
meaning of Article 3.1(a) of the SCM Agreement.59 
3.10.  Guatemala t hus requests, pursuant to Article 19.1 of the DSU, 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 constitute  prohibited  export subsidies 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 those  measures without delay 
within a time -period specified by the Panel.60 
3.4  India 
3.11.  India requests that the Panel find  that: 
i. the complainants have failed to meet their burden of showing that India provides 
market price support for sugarcane that exceeds the de minimis  level of 10% of the 
total value of sugarcane production as per Article 7.2(b) of the Agreement on 
Agriculture61; 
ii. the complainants have failed to meet their burden of showing that India's Production 
Assistance Scheme, Buffer Stock Scheme, the M arketing and Transportation  Scheme, 
and the DFIA constitute subsidies within the meaning of Article 9 of the Agreement on 
Agriculture and, consequently, that the complainants have failed to demonstrate that 
India has acted inconsistently with its obligations under Articles 3.3, 8, and 10 of the 
Agreement on Agriculture ; 
 
57 Australia's first written submission, para. 469.  
58 In its first written submission, Guatemala req uested that the Panel find that India acts inconsistently 
with Articles 7.2(b), 3.2, and 6.3 of the Agreement on Agriculture. (Guatemala's first written submission, 
para. 324. See also Guatemala's response to Panel question No. 15) Following  India's acknow ledgement that its 
Schedule does not contain Total AMS reduction commitments (India's response to Panel question No. 46), 
Guatemala , in its second written submission,  requested that the Panel find that India acts inconsistently with 
Article  7.2(b) of the A greement on Agriculture, or, in the alternative, if the Panel were to find that India has 
scheduled commitments of "zero" or "nil" for sugarcane, that India violates its obligations under Articles 3.2 and 
6.3 of the Agreement on Agriculture. (Guatemala's s econd written submission, para. 132)  
59 Guatemala's first written submission, para. 324 . 
60 Guatemala's first written submission, para. 325 . 
61 In its first written submission, India asserted  that 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 Agreement 
on Agriculture.  (India's first written submission, para. 51 ) In respo nse to a Panel qu estion, India submitted  that 
it does not have a Total AMS commitment in Part IV of its Schedule, such that Articles 3.2 and 6.3 do not apply.  
(India 's response to Panel question No. 46 . See also India's response to Panel question 15(a) ) India also asserted  
that a finding under Article s 3.2 and 6.3 of the Agreement on Agriculture is not necessary if the Panel concludes 
that India has acted inconsistently with Article  7.2(b)  of that Agreement . (India 's response to Panel question 
No. 15(b)) WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  iii. the Marketing and Transportation  Scheme falls within the sc ope of Articles 9.1(d) 
and (e) of the Agreement on Agriculture and is, therefore, permitted under Article 9.4 
of that Agreement;  
iv. the requirements of Article 3 of the SCM Agreement are not yet applicable to India and 
that India has a phase -out period of 8 y ears to eliminate export subsidies, if any, 
pursuant to Article 27 of the SCM Agreement ; 
v. notwithstanding the above, the complainants have failed to demonstrate that India's 
Production Assistance Scheme, Buffer Stock Scheme, the Marketing and 
Transportation  Scheme , and the DFIA constitute prohibited export subsidies that are 
inconsistent with India's obligations under Articles  3.1(a) and 3.2 of the 
SCM Agreement; and  
vi. the DFIA falls within the scope of footnote 1, read with Annex I, of the SCM Agreement, 
and thus it is not a "subsidy" within the meaning of the SCM Agreement and the 
Agreement on Agriculture.62 
3.12.  In addition, as noted in section 1.5.3 above, India , in its first written submission,  requested 
the Panel to issue a preliminary ruling finding that certain measures challenged by the complainants 
do not fall within the Panel's ter ms of reference as per Articles 6.2 and 7.1 of the DSU.63 
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their integrated executive summaries, provided 
to the Panel in accordance with paragraph 23 of the Working Procedures adopted on 
5 December  2019 (see Annexes B -1, B-2, B-3, and  B-4). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Canada, China, Costa Rica, El Salvador, th e European Union, Japan , and the 
United States are reflected in their executive summaries, provided  to the Panel  in accordance with 
paragraph 26 of the Working Procedures adopted on 5 December 2019 (see Annexes C -1, C-2, C-3, 
C-4, C-5, C-6, and  C-7). The other third parties  did not submit written or oral arguments to the 
Panel.  
6  INTERIM REVIEW  
6.1  Introduction  
6.1.  On 22 July 2021, the Panel issued its Interim Report to the parties. On 12 August 2021, Brazil, 
Australia, Guatemala, and India each submitted written re quests for the Panel to review precise 
aspects of the Interim Report. On 26 August 2021, Australia, Guatemala, and India submitted 
comments on the other parties' requests for review.  
6.2.  In addition to its request for review, on 12 August 2021, India also req uested that the Panel 
hold an interim review meeting with the parties to discuss two precise aspects of the Interim Report , 
namely the Panel's reference to the Duty Free Import Authorization (DFIA) Scheme64 and the Panel's 
recommendation under Article 4.7 of the SCM Agreement.65  
6.3.  On 18 August 2021, the complainants indicated, inter alia , that the interim review meeting had 
to be confined to the two precise aspects identified by India. On 20 August  2021, India also indicated 
that the scope of the interim rev iew meeting would be  confined  to the two precise aspects of the 
Interim Report identified in its request for review. Moreover, in India's view, since the se two precise 
aspects did not concern the claims raised by Brazil (DS579), participation in the meetin g had to be 
limited to the parties in the other two disputes  (DS580 and DS581) , the Panel, and the WTO 
 
62 India's first wri tten submission, para. 161 . 
63 India's first written submission, para. 162.  
64 See section 7.2.2.5  below.  
65 See section 7.2.6  below.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Secretariat. On 24 August  2021, Brazil stated that it did not object to the interim review meeting 
proceeding without its participation, provided that the meeting  was limited to the two issues raised 
in India's request for review of precise aspects of the Interim Report dated 12  August 2021. Brazil 
also stated that it would not submit any comments on India's request for review. Australia and 
Guatemala did not provide any comments on India's view in this regard. In accordance with 
Article  15.2 of the DSU , the Panel held an interim review  meeting with the parties in DS580 and 
DS581 (i.e. Australia, Guatemala, and India)  on 2 September 2021 , in a virtual format, via Cisco 
Webex.  
6.4.  In accordance with Article 15.3 of the DSU, this section of the Report sets out our response to 
the parties' requests made at the interim review stage. In addition to the requests discussed below, 
we made corrections to a n umber of typographical and other non -substantive errors in the Report, 
including those identified by the parties. The numbering of some of the footnotes  in the Final Report 
has changed from the numbering in the Interim Report. The discussion in this sectio n refers to the 
numbering in the Final Report and, where it differs, includes the corresponding numbering in the 
Interim Report.  
6.5.  Brazil, Australia, and Guatemala  made requests to amend or add a number of footnotes  
containing references to the parties' sta tements and submissions . A number of t hese requests have 
been implemented, resulting in modifications to, or additional references in, footnotes to paragraphs 
7.1, 7.2, 7.11, 7.28, 7.46, 7.78, 7.126 , 7.131 , 7.147 , 7.149 , 7.151 , 7.158 , 7.180 , 7.181 , 7.182 , 
7.184 , 7.201 , 7.210 , 7.225 , 7.227 , 7.233 , 7.235 , 7.237 , 7.239 , 7.247 , 7.257 , 7.260 , 7.266 , 7.272 , 
7.286 , 7.288 , 7.296 , 7.298 , 7.343 , and 7.346 . 
6.2  Requests for review of sections 1  to 3 (Introduction, Factual aspects, and Parties ' 
requests for findings and recommendations)  
6.6.  Guatemala suggest ed adding , in paragraphs 1.31 and 1.36, an explanation that the test 
sessions for the first and second substantive meetings were conducted successfully without any 
indication of technical problems. We have implemented this suggesti on. 
6.7.  To reflect more accurately what is being described in paragraph 2.3, Guatemala suggest ed 
replacing  "legal instruments" at the end of the first lin e with "measures".  We have implemented 
this suggestion and made an additional modification in line with our preliminary ruling, set out in 
Annex E -1 to th is Report.  
6.8.  Guatemala suggested  adding  a brief explanation in footnote 41 to paragraph 2.3 in order to  
explain why the complainants did not include certain measures  in their calculations of India's  alleged  
market price support . We have added and, for the sake of  accuracy, expanded t he suggested change . 
6.9.  Brazil requested adding a sentence in footnote 41 to paragraph 2.3 to reflect its view that the 
policies and payments listed in paragraph 2.3(iii) constitute "non -exempt direct payments" or "other 
non-exempt policies". We have implemented  this request and mad e minor stylistic changes . 
6.10.  Brazil also requested adding a new footnote reflecting its view that the policies and payments 
listed under paragraph 2.3(iii) constitute "non -exempt direct payments" or "other non -exempt 
policies". We have accepted Brazil's requ est and added footnote 42 to paragraph 2.4. 
6.11.  Guatemala requested that footnote 58 (footnote 57 of the Interim Report) to paragraph 3.8 
be reformulated in order to expl ain that Guatemala limited its request for findings to Article 7.2(b) 
of the Agreement on Agriculture because India acknowledged that its Schedule contains no Total 
AMS commitments, as well as  to chronologically present  the references to Guatemala's  submis sions. 
We have reformulated  the footnote as requested . 
6.3  Requests for review of section 7.1 (Domestic support)  
6.12.  Regarding  paragraph 7.1, Guatemala request ed adding a footnote indicating that India 
acknowledged that it has no Total AMS commitments in its Schedule. Regarding paragraph  7.2, 
Guatemala propose d adding a sentence explaining why India considers that the complainants' 
interpretation of market price support is incorrect. We have added certain language to paragraph  7.2 
in order to implement these requests by Guatemala . WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  6.13.  With respe ct to footnote 123 (footnote 93 of the Interim Report) to paragraph 7.19, and 
paragraph  7.29, Guatemala request ed the inclusion of an explanation as to why the  complainants 
omitted certain measures from their calculations of India's  alleged  market price support. To 
implement these requests, w e have included additional language and cross -references to where this 
explanation is contained elsewhere in the Report.  
6.14.  With respect to  paragraph 7.20, Brazil and Australia requested that the description of India's 
arguments replicate the wording used by India. Australia  request ed a similar change to 
paragraph  7.59. We have modified the language used in these paragraphs.  
6.15.  Regarding  paragraph 7.37, Brazil and Australia  request ed revising the Panel's description of 
the complainants' understanding of when market price support  can be said to exist . Guatemala also 
requested amending  paragraph 7.37  to reflect the argument, which Guatemala ascribes to the 
complainants,  that the applied administered price  may be achieved in different ways, one of which 
consists of a price set by th e government at which specified entities will purchase a given agricultural 
product.  India object ed to Guatemala's request because, in India's view, this paragraph accurately 
conveys Guatemala's arguments regarding the applied administered price. Finally, Guatemala also 
requested ascribing the argument concerning Article 6.1 of the Agreement on Agriculture to all three 
complainants and not just Brazil and Australia. Regarding the existence of market price support, we 
have revised the description of the comp lainants' arguments and, for the sake of clarity, included 
direct quotations from their submissions and statements in footnote 147 (footnote 117 of the Interim 
Repor t) to paragraph  7.37. Regarding the applied administered price, we note that Guatemala d oes 
not indicate any references to the complainants' submissions or statements that would support the 
assertion that Guatemala wishes to ascribe to the complainants. We  therefore decline that request. 
Regarding Article 6.1 of the Agreement on Agriculture, we have ascribed  this argument to all three 
complainants.  
6.16.  Regarding  paragraph 7.42, Brazil requested that the Panel's description of the logic of the 
Agreement on Agriculture be harmonized with the description in paragraph  7.26. We have revised 
paragraph  7.42 to implement this request.  
6.17.  Concerning  paragraph 7.44, Australia requested  that the reference to the complainants, in 
the context of describing three possible interpretations of paragraph 1 of Annex 3, be revised to 
Guatemala. In light of Australia's request, we have modified the relevant sentence of 
paragraph  7.44. 
6.18.  With respect to  footnote 176 (footnote 144 of the Interim Report) to paragraph  7.46, Australia 
requested ascribing to all three complainants, instead of just Brazil and Guatemala, an argument 
opposing India's view that all subsidies must share a commonality with the types of subsidies set 
out in parag raph 2 of Annex 3 of the Agreement on Agriculture. In our view, the reference provided 
by Australia in its request (to paragraph 66 of its second written submission) is not sufficient to 
ascribe the argument to Australia. Nevertheless, we have included a q uotation from that paragraph 
in footnote 176 for the sake of completeness.  
6.19.  Regarding  paragraph 7.48, Brazil and Australia request ed removing the word "probably" in 
reference to the intentions of the drafters of the Agreement on Agriculture, in order to harmonize 
with a corollary reference in paragraph 7.57. While we agree that the description in these two 
paragraphs should be harmonious, our use of the word "probably" in paragraph 7.48 is deliberate.  
We have therefore added  the word "probably" to paragraph 7.57.   
6.20.  Concerning  parag raph 7.53, Guatemala suggest ed simplifying the Panel's reasoning by 
deleting certain language. We consider that Guatemala's proposed revision would no t only simplify 
but modify the substance of our reasoning and therefore decline this request.  
6.21.  Brazil requested either the deletion or revision of paragraph 7.55 in order to avoid giving the 
impression that a methodology based on budgetary outlays is hierarchically superior to other 
methodologies for the purpose of quantifying non -exempt direct payments or other non -exempt 
measures. We agree with Brazil that this paragraph could benefit from further clarity  and have 
revised it accordingly.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  6.22.  Brazil requested that, in paragraph 7.60, the Panel avoid inadvertently characterizing the 
interpretative relevance of Members' Schedules. For the sake of clarity, we have revised the last 
sentence of paragraph 7.60.  
6.23.  With respect to paragraph 7.69, Guatemala suggested modifying the Panel's description of 
the second sentence of paragraph 8 of Annex 3, for the sake of completeness and clarity. We have 
modified the relevant language of paragraph 7.69.  
6.24.  Brazil requested that the heading of section 7.1.3.2.3  be revised to reflect that this section 
addresses both the existence and the amount of India's market price support. We have modified the 
heading of that section.  
6.25.  Brazil requested replacing the words "have, in principle, to be taken" with "must be taken" in 
the fourth sentence of paragraph 7.78. We have modified the paragraph accordingly.  
6.26.  Brazil requested that the definition of the term "direct"  as provided  in paragraph  7.225 , in the 
context of our analysis of Article 9.1(a) of the Agreement on Agriculture , be added to the definition 
of the  same  term provided in paragraph 7.88, in the context of our analysis of paragraph  1 of 
Annex 3 to that Agr eement .66 India requested that we reject Brazil's request because we need not 
reconcile the two definitions  to resolve these disputes. We agree with India and therefore decline 
Brazil's request. We have, however, added the words " inter alia " before the definition s et out in 
paragraph  7.88 to indicate that there may be more than one definition of the term  "direct"  than the 
one provided  therein . 
6.27.  Brazil   request ed modifying paragraphs 7.96 and 7.104  to clarify that our findings in the 
relevant sections apply "in the circumstances of this case" and "in light of the schemes at issue" . 
Doing so, in Brazil's view, would avoid any suggestion that we consider  evidence of actual 
disbursement, drawn from an annual budget docume nt, to be necessary in all circumstances to 
establish the existence and amount of domestic support provided by non -exempt direct payments 
and other non -exempt policies. To accommodate Brazil's request, we have modified the last 
sentences of both paragraphs . 
6.28.  Regarding  paragraph 7.111 , Guatemala suggest ed, for the sake of clarity, illustrating the level 
of India's actual AMS in relation to India's total v alue of sugarcane by including a comparison in 
relative terms (in addition to the existing comparison  in absolute terms). India d id not consider that 
this comparison was necessary for the purposes of resolving these disputes. We agree with India 
and theref ore decline Guatemala's request in this respect.  
6.4  Requests for review of section 7.2 (Export subsidies)  
6.29.  In addition to the changes listed in paragraph 6.5 above, t he complainants requested that 
minor changes be made in footnotes 328 and 329 (footnotes 295 and 296 in the Interim Report) to 
paragraph 7.124 ; paragraphs 7.126 , 7.143 , 7.146 , 7.165 , 7.171 , 7.173 , 7.196 , 7.202 , 7.266 , 7.288 , 
and 7.289 ; and the title of section  7.2.5.4 . We have made the requested changes.  
6.30.  Australia request ed that, for the sake of consistency with Austral ia's written submissions, the 
Panel clarify, in paragraph 7.116 , that Australia makes an alternative claim under Article 10.1 of the 
Agreement on Agriculture. We have made the requested modification .  
6.31.  Australia and Brazil request ed that the Panel modify it s descriptions of the MAEQ in 
paragraphs  7.124 , 7.192 , 7.275  and footnote  307 (footn ote 274  of the Interim Report) to 
paragraph  7.115  to indicate that the MIEQs and the MAEQ "each determine a total annual amount 
of sugar export quotas". In Australia's and Brazil's view, this would ensure that the Report does not 
minimize the  similarities between the MIEQs and the MAEQ. India considers that the changes 
requested by Brazil and Australia are not required because the MIEQ is the minimum quantity of 
sugar allocated to sugar mills for export, while the MAEQ is the maximum quantity allocated to sugar 
mills for export. We do not consider the change requested by Australia and Brazil to be necessary. 
Section 7.2.2 of the Report seeks to describe the measures at issue based on the text of the legal 
instruments, which implement them. In p aragraph 7.275 of the Report, we explain that, although, 
 
66 Brazil made a similar  request regarding paragraph 7.225 . See para. 6.41 below.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  on its face, the MAEQ order imposes "the maximum admissible export quantity of sugar", to be 
eligible for assistance, a sugar mill is required to have fulfilled at least 50% of its export target. 
Therefore, eligibility for a subsidy under the Marketing and Transportation Scheme is contingent on 
export performance within the meaning of Article 9.1(a) of the Agreement on Agriculture. We 
consider this explanation sufficient to address the Australia's and  Brazil's  concerns.  
6.32.  Brazil request ed that the Panel add a footnote to the phrase "pursuant to Article 21.1" in the 
second sentence of paragraph 7.154 , to reflect that Article 3.1 of the SCM Agreement applies "except 
as provided in the Agreement on Agriculture". We have accepted Brazil's request and added 
footnote  389 to paragraph 7.154 . 
6.33.  To better reflect Australia's position, Australia requested that the Panel indicate, in 
paragraph  7.180 , that Australia "does not consider the characterisation of Article 9.4 determinative 
of which party bears the initial burden of raising the provision". Australia also request ed that the 
Panel add additional references to footnote 418 (footnote 384 in the Interim Report). We have made 
the requested changes .  
6.34.  The complainants requested that paragraph 7.181  be reformulated to avoid confusion as to 
the respective positions of the complainants and India. We have implemented this suggestion. Brazil 
also requested that we add references to India's su bmissions in footnote 421 (footnote  387 of the 
Interim Report)  to paragraph 7.181 . We have implemented  Brazil's request.  
6.35.  Brazil requested that we expand the summary of Brazil's arguments regarding the legal 
standard under Articles 9.1(d) and (e) of the Agreement on Agriculture in paragraph 7.186 . We have 
partially accepted Brazil's request by adding the summary of its arguments in footnotes 431 and 
432 (footnotes 397 and 398 of the Interim Report) .  
6.36.  Brazil requested that the content of  footnote 412  to paragraph 7.192  of the Interim Report 
be moved into the body of paragraph  7.192 . We have implemented  Brazil's request.  
6.37.  Guatemala requested that we clarify, in paragraph 7.202 , that the relevant payments under 
the Marketing and Transportation Scheme are made to sugarcane farmers. We  have made the 
requested change.  
6.38.  Brazil requested that the Panel consider tying its reasoning in paragraph 7.204  to the 
interpretation set out in paragraph 7.191  of the Interim Report. We have accep ted Brazil's request 
and added footnote 461 to paragraph  7.204 , which cross -refers to the reasoning set out in 
paragraph  7.191 . 
6.39.  Guatemala request ed that we add to paragraph 7.210  references to the evidence submitted 
by the complainants to demonstrate that, because sugar mills are located in different parts of India 
and export sugar on different delivery terms, they incur different amounts of transportation costs. 
We have accepted G uatemala's request and added references to the relevant evidence in 
footnotes  467 and 469 to paragraph 7.210 . Guatemala also requested that we specify that, when 
exports occur on an EXW bas is, the seller incurs neither internal no r international transport costs. 
We have made the modification  requested by Guatemala.   
6.40.  Guatemala requested that the Panel add a footnote to paragraph 7.217  to reflect that the 
DFIA Scheme is challenged only by Australia. We have made  the requested clarification in 
footnote  479 to paragraph 7.217 .  
6.41.  Should  the Panel accept Brazil's request  regarding paragraph 7.88, Brazil request ed that the 
Panel revise the second sentence of paragraph 7.225  and add the phrase "without intervening factors 
or intermediaries" to the definition of "straightforward, uninterrupted, immediate". To reflect this 
change in the application of that interpret ation in the context of the export subsidy analysis, Brazil 
further request ed that the Panel revise the third sentence of paragraph 7.225 and make a similar 
change to paragraph 7.266 . As noted in paragraph 6.26 above , we do not consider it necessary to 
revise paragraph 7.88. We therefore also decli ne Brazil's request to modify paragraphs  7.225 and 
7.226.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  6.42.  Guatemala requested that a footnote to the complainants' response to Panel question No. 9 
be added to paragraph 7.237 . For its part, Brazil request ed that the last sentence of paragraph  7.237 
be modified to reflect that the purpose for which the assistance is provided to sugar mills is to 
alleviate the mills from financial obligations to the farmers. We have made the requested changes 
to the text of paragraph 7.237 and added a reference t o the complainants' arguments  in 
footnote  519.  
6.43.  Brazil requested that the Panel delete the words "potentially" and "however" from 
footnote  528 (footnote 489 in the Interim Report)  to paragraph 7.240 . Brazil consider s that, in this 
footnote, the Panel made additional findings regarding the characterization of the recipients under 
Article 9.1(a), with which Brazil agrees. Brazil also note s that India did not disagree with this 
alternative characterization of the recipient of the subsidies under Article 9.1(a). In addressing 
Brazil's request, instead of deleting the words "potentially" and "however", we rephrased the 
footnote to avoid the perception o f making additional findings.  
6.44.  Guatemala request ed that, for the sake of completeness, the Panel reflect in paragraph  7.245  
the complainants' argument that, in any event, the record in these proceedings contains evidence 
showing that the Central Government has made disbursements pursuant to the challenged export 
subsidy schemes. We have implemented  Guatemala's request.  
6.45.  Brazil and Australia requested a change to paragraph 7.252  and footnote 563 thereto 
(footnote 523 of the Interim Report) to more fully reflect the evidence provided by the complainants. 
We have made the requested changes.  
6.46.  To reflect more clearly the legal standard for "benefit", Brazil requested that the last sentence 
of footnote 586 (footnote 546 of the Interim Report) to paragraph 7.260  be revised. We have 
modified the footnote accordingly.  
6.47.  To enhance the clarity of the Panel's findings, Guatemala suggest ed amending the phrase "a 
separate assessment" in paragraph 7.326  by replacing the words "a separate" with the words "an 
additional". We have made the requested change.  
6.48.  Regarding the DFIA Scheme, India request ed that changes be made in paragraphs 7.116 , 
7.120 , 7.121 , 7.146 , 7.279 , 7.292 , 7.301 , 7.327 , and 7.334  to reflect that Australia's claim concerns 
the DFIA's application to sugar . Australia considers  that the Interim Report is clear that Australia's 
claim concerning the DFIA Scheme is limited to its application to sugar. Nevertheless, to achieve 
further clarity, Australia d oes not object to the Panel making minor amendments to some of the 
paragraphs identified by India. We agree with Australia that it is sufficiently clear from the Report 
that Australia's claim and the Panel's findings , as well as  conclusions  and recommendations  concern 
the application of the DFIA Scheme to sugar.67 Nevertheless, to ac commodate India's request, we 
have made the changes requested by India in paragraphs 7.116 , 7.120 , 7.279 , 7.291 , 7.292 , and 
7.301 .  
6.4.1   Request s for review regarding the Panel's r ecommendation under Article 4 .7 of the 
SCM Agreement68 
6.49.  Regarding the Panel's recommendation that India withdraw its prohibited subsidies  within  120 
days from the adoption of the Report s in DS580 and DS581 , India makes two arguments. First, India 
requests that the Panel review its reco mmendation and not recommend any time -period for 
compliance.69 Second, should the Panel decide  to recommend a time -period for compliance under 
Article 4.7, India requests that the Panel consider extending the 120-day period.70 
6.50.  Regarding the first argument,  India submits that the Panel's recommendation has failed to 
take into account the fact that, in these disputes, the measures found to be inconsistent with the 
SCM Agreement have also been found to be inconsistent with the Agreement on Agriculture.71 India 
points out that the Agreement on Agriculture "does not contain any special rules with respect to 
 
67 See e.g. paras. 7.277 , 7.300 , and 8.6 (Panel's conclusions and recommendations in DS580) below.  
68 The requests for review under this subsection concern only the disputes DS580 and DS581.  
69 India's request for review, paras. 11 and 13.  
70 India's request for  review, para. 14.  
71 India's request for review, para. 11.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  dispute settlement; nor does it provide for an expedited time -period within which a measure 
inconsistent with [that Agreement] must be wit hdrawn".72 India points out that Article 19 of the 
Agreement on Agriculture refers to Articles XXII and XXIII of the GATT 1994, as elaborated and 
applied by the DSU. In India's view, by referring to the DSU, Article 19 requires that the time-period 
for wit hdrawal of an inconsistent measure be determined in accordance with Article 21.3 of the 
DSU.73 India considers that Article 21.3 of the DSU and Article 4.7 of the SCM Agreement cannot 
apply together.74 In India's view, in light of Article 21.1 of the Agree ment on Agriculture, Article  19 
of the Agreement on Agriculture prevails over Article 4.7 of the SCM Agreement.75 India further 
notes that Article 1.2 of the DSU does not alter the subordination of the SCM Agreement to the 
Agreement on A griculture and that  it should not be read to indirectly allow Article 4.7 of the 
SCM Agreement to nullify Article 21.1 of the Agreement on Agriculture.76 
6.51.  Regarding the second argument, India contends that its "cooperative federalism and 
democratic decision -making process req uire that withdrawal of the measures be preceded by 
extensive discussions with all stakeholders including the relevant State governments, thousands of 
sugarcane farmers spread across several States, sugar mills, farmers' rights groups, and civil 
society".77 India further underlines " the strain on human resources and other impediments caused 
by the COVID -19 pandemic ". India therefore requests that the Panel consider providing a period of 
180 days from the date of adoption of the Reports in DS580 and DS581  to bring these measures 
into compliance.78 
6.52.  Australia and Guatemala argue that no conflict exists between the Agreement on Agriculture 
and the SCM Agreement.79 They point out th at Article 19 of the Agreement on Agriculture does not 
regulate the same matter as Article 4.7 of the SCM Agreement, i.e. the period of time for withdrawing 
a prohibited export subsidy, and the two provisions can apply simultaneously.80 Australia points ou t 
that, on the contrary, when India complies with the Panel's recommendation to withdraw prohibited 
export subsidies it will be in compliance with both the SCM Agreement and the Agreement on 
Agriculture.81 They further argue that a ny difference between Art icle 21.3(c) of the DSU and 
Article  4.7 of the SCM Agreement is addressed in Article 1.2 of the DSU , which provides that where 
there is a difference between the provisions of the DSU and one of the special or additional rules 
and procedures in its Appendix  2 (such as Article 4.7 of the SCM Agreement), the latter prevails 
over the former .82 
6.53.  With respect to India's request to extend the time -period for compliance, Australia argues 
that the Panel should reject the request because the time -frame India seeks would not be consistent 
with the requirement of Article 4.7 to withdraw the prohibited subsidies "without delay".83 For its 
part, Guatemala submits that India has not substantiated its assertion that it needs to follow a 
consultative decision -making process.84 Furthermore, Australia and Guatemala stress that the Panel 
has taken the impact of the COVID -19 pandemic into account when determining the 120-day 
period.85 
6.54.  Turning to our examination of India's request, we first recall that, pursuant to Article  4.7 of 
the SCM Agreement, i f a measure is found to be a prohibited subsidy, the panel shall recommend 
 
72 India's opening statement at the interim review meeting, para. 7.  
73 India's opening statement at the interim review meeting, para. 10.  
74 India's opening statement at the interim review meeting, para. 10.  
75 India's opening statement at the interim review meeting, para. 7.  
76 India's response to Guatemala's comments at the interim review meeting, para. 5.  
77 India's request for review , para. 14. 
78 India's request for review , para. 1 4. 
79 Australia's comments on India's request for review, para. 10; Guatemala's comments on India's request 
for review , paras. 10 -11.  
80 Australia's comments on India's request for review, paras. 9 and 12 -13; Guatema la's comments on 
India's request for review , para. 15.  
81 Australia's comments on India's request for review, para. 14.  
82 Australia's comments on India's request for review, para. 17; Guatemala's opening statement at the 
interim review meeting, para. 3.2; c omments on India's opening statement at the interim review meeting, 
paras.  6-11. 
83 Australia's comments on India's request for review, para. 20.  
84 Guatemala's comments on India's request for review, para. 27; comments on India's opening statement 
at the i nterim review meeting, para. 14.  
85 Australia's comments on India's request for review, para. 21; Guatemala's comments on India's request 
for review, para. 26.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  that the subsidizing Member withdraw the subsidy without delay  and recommend t he time ‑period 
within which the measure must be withdrawn.  By contrast, Art icle 19 of the Agreement on 
Agriculture stipulates that "[t] he provisions of Articles XXII and XXIII of GATT 1994, as elaborated 
and applied by the Dispute Settlement Understanding, shall apply to consultations and the 
settlement of disputes under [the Agr eement on Agriculture] ." Accordingly, if a measure is found to 
be inconsistent with the Agreement on Agriculture, a reasonable period of time for compliance would 
be determined in accordance with Article 21.3 of the DSU.  
6.55.  In India's view, the conflict betw een Article 21.3 of the DSU (which Article 19 of the Agreement 
on Agriculture refers  to) and Article 4.7 of the SCM Agreement is "glaring " and should be resolved 
by means of Article 21.1 of the Agreement on Agriculture .86 Article 21.1 provides that "[t] he 
provisions of GATT 1994 and of other Multilateral Trade Agreements in Annex 1A to the WTO 
Agreement shall apply subject to the provisions of [the Agreement on Agriculture]". In previous 
disputes , WTO panels and the Appellate Body have outlined three situat ions in which Article 21.1 
can apply: (i) where the Agreement on Agriculture provides an explicit carve -out or exemption from 
the disciplines of Article  3.1 of the SCM Agreement; (ii) where i t would be impossible for a Member 
to comply with its obligations  under the Agreement on Agriculture and the SCM Agreement 
simultaneously; and (iii) where the Agreement on Agriculture explicitly authorizes a measure that 
would otherwise be prohibited under Article 3.1 of the SCM Agreement.87 
6.56.  In our view, the relationshi p between Article 19 of the Agreement on Agriculture and 
Article  4.7 of the SCM Agreement does not amount to a conflict. As India argues, Article 19 of the 
Agreement on Agriculture does not prescribe any time -period within which a measure found to be 
incon sistent with th at Agreement must be brough t into conformity. By contrast, Article 4.7 of the 
SCM Agreement requires a panel to determine a time -period during which a prohibited subsidy 
should be withdrawn.88 This, however, does not mean that the two provis ions are in conflict. Article 
19 of the Agreement on Agriculture does not provide any carve -out from the provisions of Article 
4.7 of the SCM Agreement . Furthermore, by complying with the Panel's recommendation under 
Article 4.7 of the SCM Agreement, India  will simultaneously bring its measures into compliance with 
the Agreement on Agriculture.  
6.57.  In addition, the reference in Article 19 of the Agreement on Agriculture to the DSU means 
that a time -period for compliance with findings of violation under the Agre ement on Agriculture 
would have to be determined pursuant to Article 21.3(c) of the DSU. Any conflict between 
Article  21.3(c) of the DSU and Article 4.7 of the SCM Agreement would be addressed in Article 1.2 
of the DSU. Article 1.2 of the DSU stipulates th at, to the extent that there is a difference between 
the rules and procedures of the DSU  and the special or additional rules and procedures set forth in 
Appendix 2  of the DSU , the special or additional rules and procedures in Appendix 2 shall prevail.  
Article 4.7 of the SCM Agreement  is listed in Appendix 2 as a special or additional rule. Hence, the 
provisions of Article 21.3(c) are not relevant in determining the appropriate time -period under 
Article  4.7 of the SCM Agreement.89 Therefore, con trary to what India argues, the difference between 
Article 21.3(c) of the DSU and Article 19 of the Agreement on Agriculture does not give rise to a 
conflict within the meaning of Article 21.1 of the Agreement on Agriculture.  
6.58.  In light of the above, we reje ct India's request that the Panel review its recommendation and 
not recommend any time -period for compliance .  
6.59.  We now proceed to address India's request that we extend the 120-day period for compliance. 
We have no reason to put in doubt India's assertion t hat its system of cooperative federalism and 
democratic decision -making  requires consultations with stakeholders in adopting or modifying 
trade-related legislation.  This, however, is a concern shared by many, if not all, WTO Members. We 
do not see it as a factor that would justify extending the time -period we determined. Further, we 
note that the measures to be withdrawn are not statutes that would have required a legislative 
 
86 India's response to Guatemala's comments at the interim review meeting, para. 5.  
87 Appellate Bo dy Report, US – Upland Cotton , para. 532 (quoting Panel Report, US – Upland Cotton , 
para. 7.1038). As a general point, we agree with India that the instances in which a conflict can arise, referred 
to by previous panels and the Appellate Body, may not be e xhaustive. (See India's opening statement at the 
interim review meeting, para. 11) However, as explained below, we do not agree with India that the 
relationship between Article 19 of the Agreement of Agriculture and Article 4.7 of the SCM Agreement amounts  
to a conflict.  
88 India's opening statement at the interim review meeting, para. 9.  
89 Appellate Body Reports, Brazil – Aircraft , paras. 191 -192; Brazil – Taxation , para. 5.454.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  process  for withdrawal or modification , which typically take s more time than modif ying or 
withdrawing administrative instruments.  In addition, as Australia and Guatemala point out, we have 
already taken into account the impact of the COVID -19 pandemic on the functioning of the public 
sector in India in determining the time -period for co mpliance.90 
6.60.  As a result, we do not consider it appropriate to revise our recommendation that India 
withdraw its prohibited subsidies within 120 days.  
6.5  Requests for review of section 7.3 (Notifications)  
6.61.  Australia requested amending the final sentence of paragraph 7.336  in order to clarify India's 
argument that Australia has failed to establish that India was required to submit notifications  
pursuant to Article 18 of the Agreement on Agricu lture, Article 25 of the SCM Agreement , and 
Article  XVI of the GATT 1994. We have modified the paragraph accordingly.  
6.6  Requests for review of the Appendix (Calculation of India's market price support to 
suga rcane producers for the 2014 -15 to 2018 -19 sugar seasons ) 
6.62.  Since the Appendix  contains factual and legal findings by the Panel , Brazil  request ed that the 
content of the Appendix be included in the main body of the Panel Report, for instance within 
section  7.1.3.2.3. Brazil considered that this would enhance the accessibility of the Panel Report. 
We note that the legal status of the Appendix as an integral part of the Panel Report is unquestioned. 
We consider it relevant, in addressing this request, that the findings contained in the Appendix are 
of a highly technical nature and are concerned exclusively with the application, in the specific 
circums tances of th ese dispute s, of paragraph  8 of Annex  3 to the Agreement on Agriculture. Given 
the level of technical complexity of those findings, as well as the fact that the findings contained 
therein are specific to the circumstances of these disputes, we consider that articulating those 
findin gs in the Appendix – rather than the main body of the Report – results in a clearer and more 
readable Panel Report. In our view, accepting Brazil's request would in fact decrease  the accessibility 
of the Panel's findings. We therefore decline this request .  
6.63.  Concerning  paragraph 2.1 of the Appendix, Guatemala reques ted us  to refer to the 
complainants, instead of solely Brazil and Australia, and to appropriately revise footnote 15.  We 
have revised the Appendix accordingly.  
6.64.  Regarding  footnote 138 to paragraph 6.2 of the Appendix , Brazil and Australia request ed us 
to revisit our explanation for the minor discrepancies between the results of the Panel's calculations 
and those of the complainants. We have implemented the modification requested by Brazil and 
Austra lia, by revising footnotes 128 and 138 . 
7  FINDINGS  
7.1  Domestic support  
7.1.1   Introduction  
7.1.  The complainants claim that India is acting inconsistently with Article 7.2(b) of the Agreement 
on Agriculture by providing domestic support to sugarcane producers in excess of  the de minimis 
level set out in Article 6.4 of the Agreement on Agriculture.91 The complainants argue that India has 
no domestic support commitment in its Schedule, and consequently, pursuant to Article  7.2(b), read 
in light of Article 6.4, India may not provide product -specific domestic support to sugarcane 
producers that exceeds 1 0% of the total value of sugarcane production.92 On this basis, the 
complainants provide evidence and calculations seeking to demonstrate that, in each sugarcane 
season from 2014 -15 to 2018 -19, India provided product -specific domestic support  to sugarcane 
 
90 See para. 7.333  below.  
91 See e.g.  Brazil's second written submission, para. 151; Australia's second written submission, 
para. 235; Guatemala's second written submission, para. 132.  
92 See e.g.  Brazil's first written submission, para. 3; Aus tralia's first written submission, paras. 108 and 
110; Guatemala's first written submission, paras. 112 -114.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  producers,  in excess of the permitted level, through: (i) market price support and (ii)  non-exempt  
direct payments or other non-exempt policies .93 
7.2.  India agrees with the complainants that it has no Total AMS commitment in its Schedule.94 
However, India subm its that the complainants' identification of market price support in India is based 
on a mistaken interpretation of the term "market price support" in the Agreement on Agriculture.95 
India argues that market price support can only exist when the government  or its agents pay for or 
procure the product in question.96 In India's view, the complainants have consequently failed to 
demonstrate that India provides any market price support to sugarcane producers.97 According to 
India, since the complainants have fa iled to demonstrate the existence of market price support to 
sugarcane producers, the complainants have also failed to demonstrate how the total support 
provided to sugarcane producers exceeds the permitted level of domestic support.98 India therefore 
considers that the complainants have failed to demonstrate that India is acting inconsistently with 
Article 7.2(b).99 
7.3.  We consider it useful to briefly outline certain aspects of the Agreement on Agriculture related 
to the present dispute. We begin by noting th at several provisions in the Agreement on Agriculture 
refer to the "Aggregate Measurement of Support" (AMS). Article 1(a) defines AMS as: 
[T]he annual level of support, expressed in monetary terms, provided for an agricultural 
product in favour of the prod ucers of the basic agricultural product or non -product -
specific support provided in favour of agricultural producers in general, other than 
support provided under programmes that qualify as exempt from reduction under Annex 
2 to this Agreement, which is:  
(i) with respect to support provided during the base period, specified in 
the relevant tables of supporting material incorporated by reference in 
Part IV of a Member's Schedule; and  
(ii) with respect to support provided during any year of the 
implementation  period and thereafter, 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 Sc hedule;  
7.4.  Article  1(h) further defines "Total AMS" : 
"Total Aggregate Measurement of Support" and "Total AMS" mean the sum of all 
domestic support provided in favour of agricultural producers, calculated as the sum of 
all aggregate measurements of support for  basic agricultural products, all non -product -
specific aggregate measurements of support and all equivalent measurements of 
support for agricultural products, and which is:  
(i) with respect to support provided during the base period (i.e. the 
"Base Total A MS") and the maximum support permitted to be provided 
during any year of the implementation period or thereafter (i.e. the "Annual 
and Final Bound Commitment Levels"), as specified in Part IV of a Member's 
Schedule; and  
(ii) with respect to the level of su pport actually provided during any year 
of the implementation period and thereafter (i.e. the "Current Total AMS"), 
calculated in accordance with the provisions of this Agreement, including 
Article  6, and with the constituent data and methodology used in t he tables 
 
93 See e.g. Brazil's first written submission, paras. 131 -167; Australia's first written submission, 
paras.  149-209; Guatemala's first written submission, paras. 137 -191. 
94 India's response to Panel question No. 46.  
95 See e.g. India's first written submissi on, paras. 59 and 62 -63.  
96 See e.g. India's first written submission, para. 62; second written submission, para. 31.  
97 See e.g. India's second written submission, para. 8.  
98 See e.g. India's second written submission, para. 57.  
99 See e.g.  India's second  written submission, para. 58.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  of supporting material incorporated by reference in Part IV of the Member's 
Schedule [.] 
7.5.  Turning to  the obligations that Members have undertaken with respect to the provision of 
domestic support to agricultural producers, we note that Members shall not provide domestic support 
in excess of the amounts they have committed to, as inscribed in their Schedu les.100 The Agreement 
on Agriculture also covers the situation where a Member has specified no domestic support 
commitment in its Schedule. Specifically, Article 7.2(b) states that:  
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.  
7.6.  Regarding the relevant de minimis level, Article 6.4 elaborates that:  
(a)  A Member shall not be required to include in the calculation of its Current Total AMS 
and shall not be required to reduce:   
(i)    product -specific domestic support which would  otherwise be required 
to be included in a Member's calculation of its Current AMS where such 
support does not exceed 5  per cent of that Member's total value of 
production of a basic agricultural product during th e relevant year;  and  
(ii)    non-product -specific domestic support which would otherwise be 
required to be included in a Member's calculation of its Current AMS where 
such support does not exceed 5  per cent of the value of that Member's total 
agricultural  production.    
(b)  For developing country Members, the de minimis  percentage under this paragraph 
shall be 10  per cent.  
7.7.  Article 6.4 thus excludes from the calculation of a Member's Current Total AMS, and exempts 
from its reduction commitments, a de minim is level of domestic support in relation to both the 
product -specific  and non-product -specific  components of its Current Total AM S. For developing 
country Members, such as India, the de minimis  level is 10% for each product -specific component 
(i.e. support  in favour of a specific basic agricultural product), and 10% for the non -product -specific 
component (i.e. support provided generally to agricultural production) . We note that certain 
provisions of the Agreement on Agriculture also exclude certain types of  measures from inclusion in 
the calculation of a Member's AMS, thereby exempting such measures from the relevant reduction 
commitments.101  
7.8.  In the context of the present disputes, we understand that sugarcane is a basic agricultural 
product, within the mean ing of the Agreement on Agriculture.102 We further note the parties' 
agreement that India's Schedule contains no Total AMS commitment.103 Based on our own review 
of India's Schedule, we too agree that India's Schedule contains no Total AMS commitment.104  
 
100 In this respect, Article 3.1 of the Agreement on Agriculture states that "[t]he domestic support … 
commitments in Part  IV of each Member's Schedule constitute commitments limiting subsidization and are hereby 
made an integ ral part of GATT 1994." Articles 3.2 and 6.3 of the Agreement on Agriculture set out the essential 
obligation that Members may not provide domestic support in excess of the commitment levels specified in their 
Schedules.  
101 See e.g. paragraph 7.25 below.  
102 This assertion by the complainants is uncontested by India. (Brazil's first written submission, para. 90; 
Australia's first written submission, para.  154; Guatemala's first written submission, para. 101)  
103 Brazil's first written submission, paras. 65 -69; Australia's first written submission, paras. 103 –104; 
Guatemala's first written submission, paras. 109 –110; India's response to Panel question No. 46 . 
104 Schedule XII – India ("India's Schedule"), Part IV . We note, in particular, that the columns in Part IV 
of the Schedule titled "Base Total AMS" and "Annual and final bound commitment levels" are blank. The column 
titled "Relevant Supporting Tables and document reference" refers to supporting document "AGST/IND". Th at 
supporting document, G/AG/AGST/IND, states , under the heading "Domestic Support" , that "India is not required 
to undertake any reduction commitment as the average Total Aggregate Measuremen t of Support is ( -) Rs. 
198608 millions ( -18 per cent of the value of output)."  (G/AG/AGST/IND, p. 3, para. 4 ) WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.9.  Since India specified no Total AMS commitment in its Schedule, Article 7.2(b) stipulates that 
India may not provide  non-exempt support to sugarcane  producers in excess of  the relevant  de 
minimis  level set out  in Article 6.4.105 More precisely, since India i s a developing country, 
Article  7.2(b), r ead in light of Article 6.4, stipulates that India may not provide  non-exempt  
product -specific  domestic support in excess of 10% of the total value of production of any basic 
agricultural product (including sugarcan e), or  non-exempt  non-product -specific  domestic support in 
excess of 10% of the value of India's total agricultural production.  
7.10.  The complainants assert that India is acting inconsistently with Article 7.2(b) by providing 
non-exempt product -specific106 domes tic support to sugarcane producers that exceeds 10% of the 
total value of sugarcane production in India. The complainants  seek to substantiate this assertion 
by demonstrating that, for each sugar season from 2014 -15 to 2018 -19, India provided such 
non-exem pt product -specific domestic support in excess of 10% of the total value of its sugarcane 
production.  
7.11.  For our purposes, in assessing India's compliance with Article 7.2(b), we consider it 
appropriate to examine whether India's non -exempt product -specific domestic support to sugarcane 
producers exceeded 10% of the total value of sugarcane production during recent "relevant 
years".107 We agree with the complainants that, in the context of India's sugarcane production, a 
"relevant year" within the meaning of t he Agreement on Agriculture refers to a sugar season.108 We 
therefore proceed to examine the complainants' assertions regarding India's provision of domestic 
support to sugarcane producers in each sugar season  from 2014 -15 to 2018 -19.109  
7.12.  We note that conducting this assessment essentially entails comparing two amounts for each 
season: (i) the level of product -specific domestic support to sugarcane producers that India was 
permitted to provide in each season; and (ii) the amount of non-exem pt product -specific domestic 
support , if any,  that India actually  provided  to sugarcane producers in each season  (i.e. India's AMS 
to sugarcane producers) . We therefore proceed by assessing each of these issues in turn. Our 
conclusion as to India's consist ency with Article 7.2(b) is based on a comparison of these two figures 
for each season.  
7.1.2   India's permitted level of product -specific support to sugarcane producers  
7.13.  As a first step in our analysis, we address the maximum level of domestic support that Indi a 
was permitted to provide to sugarcane producers during each sugar season from 2014 -15 to 
2018-19. We recall that, under Article  7.2(b)  of the Agreement on Agriculture , India was permitted 
to provide product -specific support to sugarcane producers up to b ut not exceeding 10% of the total 
value of its sugarcane production.110  
 
105 In their first written submissions, in addition to their claims under Article  7.2(b), the complainants also 
argued that India was acting incons istently with Articles 3.2 and 6.3 of the Agreement on Agriculture. T he 
complainants'  claims under Article 7.2(b)  are premised on their understanding that India's Schedule contain s no 
commitment with respect to domestic support , and their claims under Articles 3.2 and 6.3 are only "in the 
alternative", in the event that India had indeed inscribed such a commitment in its Schedule . (See complainants' 
responses to Panel question No. 1 5) Since India's Schedule contains no  such commitment, it is unnecessary  for 
us to address the complainants' claims under Articles 3.2 and 6.3.  (See also fn 51 to para.  3.1, fn 54 to para  3.4, 
fn 58 to para. 3.8, and fn 61 to para. 3.11 above ) 
106 The complainants focus exclusively on India's non-exempt product -specific  domestic support for 
sugarcane and have not raised any arguments or evidence regarding the non-product -specific  component of 
India's obligations. (See e.g. Brazil's first written submission, heading  III.C; Australia's first written submission, 
heading III .C; Guatemala's first written submission, para. 114)  
107 Article 6.4(a)(i) of the Agreement on Agriculture refers to " product -specific domestic support which 
would  otherwise be required to be included in a Member's calculation of its Current AMS where such support 
does not exceed 5  per cent of that Member's total value of production of a basic agricultural product during the 
relevant year ". (emphasis added)  
108 Article 1(i) of the Agreement on Agriculture explains that the term "'year' … refers to the calenda r, 
financial or marketing year specified in the Schedule relating to that Member. " We understand that India's 
Schedule identifies the "marketing year" as the "relevant year" for calculating domestic support. 
(G/AG/AGST/IND, p. 4, para. 6) It is uncontested  that this refers to the sugar season in India, beginning in 
October and end ing in September  of the following year. (See e.g.  Brazil's first written submission, fn 99 to  
Table  9 on p. 24; Guatemala's first written submission, paras. 107 -108; India's first written submission, para.  18) 
109 We note that India does not contest this evidentiary approach.   
110 See para.  7.9 above.   WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.14.  As evidence of India's total value of production of sugarcane for each season, the 
complainants submit the official Indian Ministry of Statistics and Programme Implementation 
(MOSPI) National Accounts Statistics  2020.111 Entry 4 of this document indicates t he value of 
production for each relevant sugar season for "Sugars". Under "Sugars", the document indicates the 
value of production for "Sugarcane" (sub -entry 4.1), "gur" (sub -entry 4.2), and "others" 
(sub-entry  4.3).112 Based on a 2007 manual published by M OSPI, titled " National Accounts Statistics 
Sources and Methods"113, the complainants note that, in addition to sub -entry 4.1 (sugarcane), the 
data in sub -entry 4.2 (gur) may also be relevant to the total value of production of sugarcane.114  
7.15.  India does not c ontest the complainants' factual assertions regarding the total value of 
production for each sugar season from 2014 -15 to 2018 -19.115  
7.16.  We have reviewed the MOSPI data, as well as the explanations in the 2007 MOSPI manual. 
According to the 2007 manual, " total sugarcane production  [in the official MOSPI statistics]  is divided 
into two parts viz., sugarcane utilised as such and the sugarcane converted into gur. "116 We therefore 
understand that the total value of production of sugarcane in India is divided between 
sub-entries  4.1 (sugarcane) and 4.2 (gur).117 For our purposes, we see no reason to exclude  the 
sugarcane used to produce gur from the calculation of India's total value of production of sugarcan e 
for each sugar season from 2014 -15 to 2018 -19.118  
7.17.  We therefore calculate 10% of the total value of production of sugarcane for each sugar 
season from 2014 -15 to 2018 -19, to find the maximum level of domestic support that India was 
permitted, under the Ag reement on Agriculture, to provide to sugarcane producers during each sugar 
season:  
Sugar 
season  Total value of sugarcane production 
(INR million)119 India's permitted level of  product -
specific support to sugarcane 
producers (INR million)120 
2014-15 965,290.00  96,529.00 
2015-16 958,640.00  95,864.00 
 
111 Brazil 's Calculation of India's Domestic Support for Sugarcane,  (Exhibit BRA -1 (revised -3)), " C-27 
Value of production " spreadsheet; Australia's Domestic Support Calculations, (Exhibit AUS -1 (revised 23 March 
2021)), "ValueOfProduction " spreadsheet;  Guatemala's Cal culations of India's AMS (Exhibit GTM -45 (revised 
12 May 2021)), " TVP" spreadsheet ; Ministry of Statistics and Programme Implementation (MOSPI), National 
Accounts Statistics 2020, Statement 8.1.2 Crop -wise value of output , (Exhibit JE -147). 
112 MOSPI , Nation al Accounts Statistics 2020, Statement 8.1.2 Crop -wise value of output , (Exhibit JE -147).  
113 MOSPI, National Accounts Statistics Sources and Methods 2007, Chapter 9 , (Exhibit JE -168).  
114 See complainants' responses to Panel question No. 60.  
115 The complainan ts requested India to clarify the correct figures to be used to calculate the de minimis 
level of domestic support that India was entitled to provide to sugarcane producers for each relevant sugar 
season. ( Complainants' responses to Panel question No. 60 ; Guatemala's questions to India following the second 
substantive meeting with the Panel, question No. 1) In response, India states that: "(i) the complainants, 
including Guatemala, have failed to demonstrate why the FRP/SAP measures qualify as market price support; 
and (ii) the complainants bear the burden to explain the relevance or accuracy of the so called evidence which 
they have sought to rely on in support of their erroneous claims on market price support." (India's response to 
Guatemala's questions to  India following the second substantive meeting with the Panel, question No. 1) 
116 MOSPI, National Accounts Statistics Sources and Methods 2007, Chapter 9, (Exhibit JE -168), p. 97. 
We note Guatemala's explanation that "gur" is a type of " unrefined or partia lly refined sugar that [is] produced 
from sugarcane ". (Guatemala's first written submission, para. 39)  
117 The Manual also indicates that "in the case of sugarcane, outturn excluding the quantity converted into 
gur by the cane growers is taken and gur is evaluated separately" and that "[c]onversion of sugarcane into gur 
is an activity undertaken by the agricult urists." (MOSPI, National Accounts Statistics Sources and Methods 2007, 
Chapter 9, (Exhibit JE -168), pp. 95 and 97)  
118 We note that certain of the complainants have expressed reservations regarding whether the 2007 
Manual continues to be relevant to contemp orary MOSPI statistics. (See e.g. Brazil's response to Panel question 
No. 60, para. 5; Australia's response to Panel question No. 60, para. 14) However, we see no reason to conclude 
that the explanation set out in the 2007 Manual regarding "sugarcane" and "gur" would not continue to apply to 
contemporary MOSPI statistics.  
119 These figures represent the sum of sub -entries 4.1 ("Sugarcane") and 4.2 ("gur") of the MOSPI National 
Accounts Statistics 2020, (Exhibit JE -147). In representing these figures here, we  understand that the term crore 
as used in the MOSPI National Accounts Statistics refers to tens of millions. ( See Brazil's first written submission, 
fn 3 to Table 1; Australia's first written submission, p. 27; Guatemala's first written submission, p. v. India does 
not contest the complainants' explanation  of India's numbering system .) 
120 I.e. the de minimis level of 10% of the total value of sugarcane production.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Sugar 
season  Total value of sugarcane production 
(INR million)119 India's permitted level of  product -
specific support to sugarcane 
producers (INR million)120 
2016-17 946,980.00  94,698.00 
2017-18 1,173,510.00  117,351.00 
2018-19 1,230,490.00  123,049.00 
 
7.1.3   India's actual amount of non -exempt product -specific support to sugarcane 
producers  
7.1.3.1   General considerations  
7.18.  The second step of our analysis entails determining the amount of non-exempt 
product -specific domestic support that India actually provided to sugarcane producers for each sugar 
season from 2014 -15 to 2018 -19. We refer to this amount, for ea ch season, as India's AMS to 
sugarcane producers.  
7.19.  The complainants assert that, pursuant to Article 6.1 of the Agreement on Agriculture, any 
measure that provides support to agricultural producers should be included in the calculation of a 
Member's AMS, u nless that measure is exempted from that calculation pursuant to a relevant 
provision of the Agreement on Agriculture.121 The complainants also note that, under paragraph 1 
of Annex 3 of the Agreement on Agriculture, a Member's product -specific AMS shall be  calculated on 
the basis of " market price support, non -exempt direct payments, or any other subsidy not exempted 
from the reduction commitment ( 'other non -exempt policies ')".122 The complainants submit that 
India provides market price support to sugarcane p roducers in the form of measures, at both the 
Central and State Government levels, that require sugar mills and factories to pay a minimum price 
for sugarcane .123 The complainants also allege that several State Governments maintain policies or 
payments that constitute "non -exempt direct payments" or "other non -exempt policies" that should 
be included in the calculation of India's AMS to sugarcane producers.124  
7.20.  India argues that the legal instruments identified by the complainants as comprising " market 
price support"  do not  fall within the scope of market price support within the meaning of the 
Agreement on Agriculture .125 India submits that market price support, under the A greement on 
Agriculture , only exists when the government pays for  and procu res the relevant agricultural 
product.126 Since  the instruments identified by the  complainants as market price support fail to 
satisfy this key requirement, India argues that they should be excluded from the calculation of India's 
AMS to sugarcane producers .127 India further considers that, since these instruments should be 
excluded from the calculation, the c omplainants have failed to demonstrate that India is acting 
inconsistently with its domestic support obligations, because the amounts of the other domes tic 
support measures  identified by the complainants (i.e. the "non -exempt direct payments" and "other 
non-exempt policies") do not exceed India's permitted amounts of domestic support.128 
 
121 Brazil's second written submission, paras. 16 -18; Australia's second written submission, paras. 38 -39; 
Guatemala's opening statement at the second substantive meeting of the Panel, para. 2.17.  
122 Brazil's first written submission, paras. 94 -95; Australia's  first written submission, para. 111; 
Guatemala's first written submission, para. 115.  
123 Brazil's first written submission, paras. 25 -48, 132 -133, 135 -139 and 156 -160; Australia's first written 
submission, paras. 21 -61 and 153 -156; Guatemala's first writt en submission, paras. 37 -72 and 137 -144. The 
complainants also identify certain measures that allegedly assist sugarcane purchasers to pay the mandatory 
minimum prices. ( Brazil's first written submission, paras. 161 -162 and Appendix A; Australia's first wr itten 
submission, paras. 181 -185 and Annexes A , B, C, D-2, D-3 and E; Guatemala's first written submission, 
paras.  87-96 and 166 -168) The complainants do not include these measures in their calculations of India's 
alleged market price support. (See fn 41 to para. 2.3 above and para. 7.70 below)  
124 Brazil's first written submission, paras. 49 -54 and 161 -165; Australia's first written submission, 
paras.  189-205; Guatemala's first written submission, paras. 76 -86, 97 -98 and 166 -189.  
125 India's first written submission, para.  82; second written submiss ion, para. 8.  
126 India's first written submission, para. 62; second written submission, para. 31.  
127 India's  first written submission, paras. 63 -65; second written submission, paras. 28 -29 and 31.  
128 India's first written submission, paras. 81 -83; second  written submission, para. 6.   WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.21.  At the outset, w e consider it useful to set out our understanding of the structure and logic of 
the rules in the Agreement on Agriculture regarding the calculation of a Member's AMS. Pursuant to 
Article 6.1 of the Agreement on Agriculture:  
The domestic support reduction commitments of each Member contained in Part IV of 
its Schedule shall apply to all of its domestic support measures in favour of agricultural 
producers with the exception of domestic measures which are not subject to reduction 
in terms of the criteria set out in this Article and in Annex  2 to this Agreement.  
7.22.  Article 1(a)(ii) of the Agreement on Agriculture explains that a Member's AMS in any year 
during and after the implementation period is to 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 Schedule ". 
Article 1(h) (ii) indicates that the calculation of a Member's Total AMS, for any year during or after 
the implementation period,  is to be "i n accordance with the provisions of this Agreement, including 
Article  6, and with the constituent data and methodology used in the tables of supporting material 
incorporated by reference in Part IV of the Member's Schedule ". 
7.23.  Annex 3 of the Agre ement on Agriculture is titled " Domestic Support – Calculation of 
Aggregate Measurement of Support ". Paragraph 1 of Annex 3 provides that:  
Subject to the provisions of Article 6, a n 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 subsidy not exempted 
from the reduction commitment ( "other non -exempt policies "). 
7.24.  The additional paragraphs of Annex 3 elaborate on v arious aspects of the calculation of AMS. 
For instance, paragraph 2 indicates that "[s] ubsidies under paragraph 1 shall include both budgetary 
outlays and revenue foregone by governments or their agents ." Paragraph 3 clarifies that "[s] upport 
at both the n ational and sub -national level shall be included. " Paragraph 7 states that the  AMS "shall 
be calculated as close as practicable to the point of first sale of the basic agricultural product 
concerned " and that "[m] easures directed at agricultural processors  shall be included to the extent 
that such measures benefit the producers of the basic agricultural products. " Paragraphs 8 -9, 10-12, 
and 13 concern specific methodologies for calculating the amount of, respectively, "[m]arket price 
support", "[n]on -exempt  direct payments", and "[o]ther non -exempt measures".  
7.25.  In addition to the de minimis exemptions set out in Article 6.4, t he Agreement on Agriculture 
also specifically exempts certain categories of support measures from the calculation of a Member's 
AMS. Fo r instance, Article 6.2 refers to "government measures of assistance, whether direct or 
indirect, to encourage agricultural and rural development …, investment subsidies which are 
generally available to agriculture in developing country Members and agricul tural input subsidies 
generally available to low -income or resource -poor producers in developing country Members". 
Article 6.5 refers to " [d]irect payments under production -limiting programmes" that are "based on 
fixed area and yields", "made on 85  per cen t or less of the base level of production", or constitute 
"livestock payments … made on a fixed number of head". Annex 2 of the Agreement on Agriculture 
sets forth certain conditions that, if satisfied, would exempt certain types of measures from the 
calculation of a Member's AMS.   
7.26.  In our view, the rules for calculating AMS, as set out in the Agreement on Agriculture and 
outlined above, contain a clear logic: any measure by a Member that provides support to its domestic 
agricultural producers must be inclu ded in the calculation of that Member's AMS unless  the measure 
is shown to be exempted or otherwise excluded pursuant to a provision of the Agreement on 
Agriculture.  
7.27.  In this respect, we consider it important  to emphasize that India does not contend  that a ny 
of the legal instruments or measures identified by the complainants are exempted from the 
calculation of AMS pursuant to Article 6 or Annex 2 of the Agreement on Agriculture.  We note, in 
particular, that India does not invoke any of the exemptions conta ined in Article 6.2 pertaining to 
developing country Members.129 Rather, as described above, India's essential argument is that under 
 
129 See India's response to Panel question No. 51.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  a correct interpretation of paragraph 1 of Annex 3, read in light of paragraph  2, measures such as 
the FRP and SAPs should be excluded from the calculation of AMS.130 
7.28.  We proceed to determine India's AMS to sugarcane producers in three steps. First, we address 
the parties' arguments and evidence regarding the alleged market price support.131 Second, we 
assess the parties' arguments and evidence concerning the alleged non -exempt direct payments and 
other non -exempt policies. Third, and finally, we calculate the sum of the market price support, 
non-exempt direct payments, and other non -exempt p olicies that have been shown to exist, to 
determine the total amount of India's product -specific AMS to sugarcane producers for each season 
from 2014 -15 to 2018 -19.   
7.1.3.2   Market price support  
7.1.3.2.1   Overview  
7.29.  The complainants argue that India provides market price sup port to sugarcane producers 
through the Fair and Remunerative Price (FRP), a measure maintained by the Indian Central 
Government that requires sugar producers to pay a minimum price for sugarcane that is determined 
by the Central Government on an annual ba sis.132 In addition, the complainants submit that certain 
State Governments in India provide market price support in the form of so -called State -Advised 
Prices (SAPs), through which these State Governments annually set mandatory minimum prices that 
are high er than the FRP.133 Applying the methodology in paragraph 8 of Annex 3 to calculate market 
price support, the complainants assert that the FRP and (in those States where they are applicable) 
SAPs constitute relevant applied administered prices (AAPs).134 The complainants also provide data 
regarding the quantity of eligible production (QEP) in different States135 and calculate adjusted fixed 
external reference prices (FERPs) to account for sugarcane quality differences136 across different 
States and seasons.137 Using these data, the complainants calculate the level of market price support 
for each season from 2014 -15 to 2018 -19.138 The complainants also identify certain measures that, 
in their view, constitute budgetary payments made by India to maintain the price gap between the 
AAP and the FERP.139 
7.30.  According to India, paragraph 1 of Annex 3 of the Agreement on Agriculture indicates that 
market price support must be in the form of a subsidy. Moreover, India argues, paragraph 2 of 
 
130 See para. 7.20 above.  
131 We note that, w hile the complainants have argu ed that the FRP and SAPs should be included in the 
calculation of India's AMS simply on the basis that they  constitute "domestic support" measures, the 
complainants also specifically identify these measures as comprising "market price support" within the m eaning 
of Annex 3 of the Agreement on Agriculture.  (See e.g.  Brazil's first written submission, paras. 132 -133; 
Australia's second written submission, para s. 85 and 150 -152; Guatemala's first written submission, para. 1; 
Guatemala's second written submissi on, para. 3 ) Moreover, the complainants have calculated the level of 
domestic support allegedly provided by these measures by applying exclusively the calculation methodology 
contained in paragraphs 8 and 9 of Annex 3  of the Agreement on Agriculture .  
132 Brazil's first written submission, paras. 25 -34 and 134 -155; Australia's first written submission, 
paras.  23-39 and 166 -173; Guatemala's first written submission, paras. 37 -50 and 137 -165.  
133 Brazil's first written subm ission, paras. 35 -48 and 156 -160; Australia's first written submission, 
paras.  41-61 and 174 -180; Guatemala's first written submission, paras. 51 -72 and 137 -165.  
134 Brazil's first written submission, paras. 142 and 156; Australia's first written submission , 
paras.  153-156; Guatemala's first written submission, paras. 140 -144.  
135 MOSPI, National Accounts Statistics 2020, Statement 8.1.2 Crop -wise value of output , (Exhibit JE -147).  
136 Brazil's first written submission, paras. 146 -147; Australia's first writte n submission, paras. 160 -162; 
Guatemala's first written submission, paras. 146 -147. 
137 Brazil's first written submission, paras. 145 -148; Brazil 's Calculation of India 's Domestic Support for 
Sugarcane , (Exhibit BRA -1 (revised -3)), "FERP" spreadsheet; Austra lia's first written submission, 
paras.  157-162; Australia's Domesti c Support Calculations, (Exhibit AUS -1 (revised 23 March 2021), "FERP" 
spreadsheet; Guatemala's first written submission, paras. 145 -147; Guatemala's Calculations of India's AMS 
(Exhibit GT M-45 (revised 12 May 2021)),  "FERP details" spreadsheet.  
138 See Brazil's Calculation of India's Domestic Support for Sugarcane, ( Exhibit BRA -1 (revised -3)); 
Australia's Domestic Support Calculations, (Exhibit AUS -1 (revised 23 March 2021)); Guatemala's Cal culations 
of India's AMS (Exhibit GTM -45 (revised 12 May 2021)).  
139 Brazil's first written submission, paras. 161 -162 and Appendix A; Australia's first written submission, 
paras. 181 -185 and Annexes A, B, C, D -2, D-3 and E; Guatemala's first written submis sion, paras. 87 -96 and 
166-168. The complainants do not include these measures in their calculations of India's alleged market price 
support. (See fn 41 to para. 2.3 above and para. 7.70 below)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Annex 3 limits the scope of subsidie s to " budgetary outlays and revenue foregone ".140 Alternatively, 
India argues, even if paragraph 2 does not explicitly limit the scope of subsidies in this way, it 
nevertheless reveals that subsidies should share the essential characteristics of "budgetary outlays 
and revenue foregone".141 India submits that, since the FRP and SAPs are payable by sugar mills 
and not the Central or State Governments, these measures are not subsidies, therefore do not 
constitute market price support within the meaning of  the Agreement on Agriculture , and 
consequently should not be counted towards India's AMS to sugarcane  producers .142 While India 
argues that these measures should be excluded from the calculation of its AMS, India does not 
otherwise contest or raise any reason to doubt the complainants' evidence or their application of the 
methodology set out in paragraph 8 of Annex  3.143 
7.31.  Annex 3 of the Agreement on Agriculture is titled " Domestic Support : Calculation of Aggregate 
Measurement of Support".  Paragraph 1 of Annex 3 indicates that, s ubject to Article 6, 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 subsidy not exempted from the re duction 
commitment ".144 Paragraphs 8 and 9 of Annex 3 directly concern the calculation of a Member's 
market price support.  
7.32.  Paragraph 8 states:  
Market price support: market price support shall be calculated using the gap between a 
fixed external reference price [FERP] and the applied administered price [AAP] 
multiplied by the quantity of production eligible [QEP]  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.   
7.33.  Thus, pursuant to the first sentence of paragraph 8, to calculate market price support, an AAP  
must be subtracted from a FERP, and the difference multiplied by the QEP.145 Under the second 
sentence of p aragraph 8 , "budgetary payments made to maintain " the gap between the FERP and 
the AAP should be excluded from  the calculation of market price support.  
7.34.  Paragraph 9 provides further guidance on the application of the methodology set out in 
paragraph 8, specifically with regard to the FERP compon ent. Pursuant to paragraph 9:  
The fixed external reference price shall be based on the years 1986 to 1988 and shall 
generally be the average f.o.b. unit value for the basic agricultural product concerned 
in a net exporting country and the average c.i.f. un it value for the basic agricultural 
product concerned in a net importing country in the base period. The fixed reference 
price may be adjusted for quality differences as necessary.  
7.35.  Annex 4 of the Agreement on Agriculture is titled: " Domestic Support : Calcu lation of 
Equivalent Measurement of Support ". Under its explicit terms, Annex 4 pertains to situations " where 
market price support as defined in Annex  3 exists but for which calculation of this component of the 
AMS is not practicable ". We note that, in the  context of this dispute, the complainants have not 
sought to apply the methodology contained in Annex 4.  
7.36.  We proceed with our analysis in t hree steps. First, we assess the parties' disagreement over 
the correct interpretation of the term "market price sup port" in the Agreement on Agriculture . 
Specifically, we address whether "market price support" refers exclusively to measures entailing 
 
140 India's first written submission, para. 62; second written submission, para. 26.  
141 India's second written submission, para. 25.  
142 India's first written submission, paras. 63 -65; second written submission, para. 28 -29 and 31 . 
143 In response to a question from the Panel seeking to  clarify India's views regarding the complainants' 
calculations, India stated that:  
[T]he complainants have failed to demonstrate that the alleged FRP/ SAP measures qualify as 
market price support in view of paragraph 2 of Annex 3 of the Agreement on Agri culture . In light 
of this, the calculations presented by the complainants are untenable and without any basis. 
Without delving into any specifics, the complainants ' actual calculations are made based on an 
incorrect interpretation of the relevant laws and the challenged measures.   
(India's response to Panel question No. 45)  
144 Emphasis added.  
145 This can be expressed mathematically as: [ Market price support = (FERP  – AAP) * (QEP) ]. WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  government purchase of the relevant product (i.e. through government expenditure or revenue 
foregone) . Second, and on th e basis of our interpretation of the term "market price support", we 
determine the amount of market price support maintained by India, in accordance with the 
methodology set  out in paragraph 8 of Annex 3.  Third, we address the complainants' references to 
certain measures that, in their view, constitute budgetary payments made to maintain the gap 
between the FERP and AAP.  
7.1.3.2.2   The scope of "market price support"  
7.37.  The complainants note that Annex 4 of the A greement on Agriculture  indicates that "market 
price support" is "defined in Annex 3 ".146 They argue that, pursuant to paragraph 8 of Annex 3, 
market price support exists when there exists an AAP, there is a gap between the AAP and FERP, 
and there is a quantity of production elig ible to receive the AAP .147 The complainants submit  that 
the AAP refers to a price "determined not by market forces but by administrative action", and is "the 
price set by the government at which specified entities will purchase certain basic agricultural 
products".148 The complainants argue that the FRP and SAPs constitute AAPs that differ from the 
market price and consequently the FRP and SAPs should be included in the calculation of India's AMS 
to sugarcane  producers , using the methodology prescribed in pa ragraph 8 of Annex 3.149 The 
complainants  also argue that, pursuant to Article 6.1 of the A greement on Agriculture , any domestic 
support measure that is not specifically exempted from the calculation of domestic support is subject 
to a Member's reduction co mmitments under the A greement on Agriculture .150 The complainants 
also refer to other relevant context  (including India's Schedule) , the object and purpose of the 
Agreement on Agriculture , negotiating history, academic writings, and prior panel reports, all  of 
which they consider to support their interpretation of the A greement on Agriculture .151 
7.38.  India argues that the FRP and SAPs do not constitute market price support under Annex 3. 
Specifically, India argues that the term "market price support" in paragraph  1 of Annex 3 i dentifie s 
a type of subsidy, in light of the language "any other subsidy" used in that paragraph.152 
Furthermore, according to India's reading of paragraph 2 of Annex 3, a subsidy can only exist where 
 
146 Brazil's second written submission, para. 57; Australia's second written submission, para. 28; 
Guatemala's second written submission, para. 43.  
147 The complainants note that, under paragraph 8, market price support is equivalent to the difference 
between the "applied administered price" (AAP) and the "fixed external reference price" (FERP), multiplied by 
the "quantity of eligible production" (QEP). (Brazil's first written submission, para. 99; Australia's first written 
submission, para. 114; Guatemala's fi rst written submission, para.  118) Brazil argues that "' market price 
support ' is a function of the QEP and the 'gap' between an AAP and the FERP. 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 and 
eligibility criteria to determine the QEP" . (Brazil's opening statement at the first substantive meeting of the Panel, 
para. 13) Austral ia argues that market price support " will exist – or have a measurable value – when there is a 
gap between a FERP and an AAP" and "market price support will exist and have a value measurable under 
paragraph  8 when a Member sets an AAP that is higher than t he relevant FERP, and determines the production 
eligible to receive that AAP" . (Australia's opening statement at the first substantive meeting of the Panel, para. 
49; second written submission, para. 33) Guatemala states that market price support " exists w henever 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." ( Guatemala's second written submission,  para. 45 (fns omitted))  
148 Brazil's first written sub mission, para. 101 ; opening statement at the first substantive meeting of the 
Panel, para. 14 ; Australia's first written submission, paras. 116 -118; Guatemala's first written submission, para. 
119 ( quoting  Panel Report, China – Agricultural Producers , para . 7.177) . Australia and Guatemala argue that the 
AAP does not necessarily entail a price achieved by government expenditures (for instance, through budgetary 
payments or procurement), but rather can simply be achieved by administrative action.  (Australia's  first written 
submission, para. 119; Guatemala's first written submission, para.  119 (referring to Panel Report, 
Korea  - Various Measures on Beef , para. 827) ) 
149 Brazil's first written submission, paras. 135 -139 and 156; Australia's first written submissio n, 
paras.  153-156; Guatemala's first written submission, paras. 140 -144. 
150 Brazil's second written submission, para. 20; Australia's second written submission, para. 39 ; 
Guatemala's response to Panel question No. 61, para. 16 . 
151 See e.g. Brazil 's opening statement at the first substantive meeting of the Panel, paras. 8 -29; second 
written submission, paras. 6 -16 and 57 -60; opening statement at the second substantive meeting of the Panel, 
paras. 13 -31; Australia's opening statement at the first subst antive meeting of the Panel , paras. 46 -54; second 
written submission, paras. 31 -84; opening statement at the second substantive meeting of the Panel, 
paras.  16-39; Guatemala's opening statement at the first substantive meeting of the Panel, paras.  3.9-3.17; 
second written submission, paras. 21 -53; opening statement at the second substantive meeting of the Panel, 
paras.  2.13-2.18.  
152 India's response to Panel question No. 18(a) ; closing statement at the first substantive meeting of the 
Panel, para. 25 ; secon d written submission, para. 18 . WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  there is a budgetary outlay or revenue fo regone by governments or their agents.153 India submits 
that the Central and State Governments do not purchase the sugarcane or pay the administered 
prices set by the FRP and SAPs.154 Rather, it is private entities (i.e. sugar mills) that do so. Therefore, 
the FRP and SAPs do not qualify as market price support, within the meaning of paragraph 1 of  
Annex 3 of  the Agreement on Agriculture , and should not be included in the calculation o f India's 
AMS to sugarcane  producers .155 India also contests the relevance of the complainants' additional 
arguments relating to context  (including India's Schedule) , object and purpose and negotiating 
history of the Agreement on Agriculture, and prior pane l reports.156 
7.39.  Certain third parties disagree with India's interpretation of Annex 3. Canada, Japan, and the 
United States consider that the use of the word "include" in paragraph 2 of Annex  3 demonstrates 
that the list of measures set out in this paragraph is not exhaustive, and measures other than 
budgetary outlays and revenue foregone by governments or their agents may also be included in 
the calculation of a Member's AMS.157 The European Union argues that the commas and use of the 
word "or" in paragraph 1 of Annex 3 indicate that this paragraph identifies three specific forms of 
domestic support, which may have different characteristics, and paragraph 2 simply clarifies the 
notion of subsidies without suggesting that all forms of domestic support mentioned in paragraph 1 
must be subsid ies or characterised by budgetary outlays or revenue foregone by governments or 
their agents.158  
7.40.  A number of other third parties take no position on the correct interpretation of Annex 3, but 
nevertheless comment on certain asp ects of India's arguments. China argues that India 
misrepresents the findings of the panel in China – Agricultural Producers .159 Costa Rica agrees with 
India that there is no rule of binding precedent in WTO dispute settlement, but submits that prior 
panel reports "may provide valuable guidance in assessing the characterization of the measures in 
question".160 El Salvador submits that, since India did not establish any domestic subsidy reduction 
commitment in its Schedule, "by virtue of the provisions of Arti cle 6.4 of the Agreement on 
Agriculture, the measures in question cannot exceed the de minimis level of  10%".161 
 
153 India's first written submission, para. 62; second written submission, para s. 22-26. 
154 India's first written submission, para. 63; second written submission, para. 28.  
155 India's first written submission, para. 63; second w ritten submission, para. 28.  
156 India's second written submission, para. 55; opening statement at the second substantive meeting of 
the Panel, paras. 6 -60.  
157 Canada's third -party statement, paras. 5 -7; Canada's third -party submission, paras. 11 -12; Japan's  
third-party statement, para. 5; United States' third -party submission, para. 22. Japan also highlights that 
Article  XVI:1 of the GATT 1994 refers to "any subsidy, including any form of income or price support", which 
supports a broad interpretation of mar ket price support, and notes that India's Schedule identifies  market price 
support on the basis of a fixed purchase price for sugarcane , which contradicts India's argument that the FRP 
does not constitute market price support . (Japan's third -party statemen t, para. 5 ) The United States considers 
that India's interpretation artificially limits the scope of the term "domestic support", as used in the Agreement 
on Agriculture, and is contradicted by the methodology to calculate market price support as set out i n paragraph 
8 of Annex 3. (United States' third -party submission, paras. 23 -25) 
158 European Union's third -party submission, paras. 46 -47. The European Union also considers that if 
Members had intended to limit the scope of their domestic support commitments  to subsidies (or budgetary 
outlays and revenue foregone) then the Agreement on Agriculture "would simply refer to subsidies to agricultural 
products and not use two different expressions such as domestic support and subsidies". (Ibid. para. 43) The 
Europe an Union further argues that this interpretation is supported by paragraph 1 of Annex 2 and paragraph  8 
of Annex 3 of the Agreement on Agriculture, the object and purpose of the Agreement on Agriculture, and the 
findings of prior panels. (Ibid. paras. 44 -60; European Union's third -party statement, paras. 4 -13) 
159 China's third -party statement, paras. 4 -5. China submits that India represents the panel's 
interpretation of the term "applied administered price" in China – Agricultural Producers  as being influenc ed by 
the context of the case, namely the source of financ ing for purchase and ownership of the purchased products. 
China argues, however, that in that dispute,  neither  the parties nor the panel raised the source of finance or 
ownership of purchased products in interpreting th at term. (Ibid. para. 5) China submits that, to the contrary,  
the panel " adopted the ordinary meaning approach presented by both parties, and found that the 'applied 
administered price ' is the price set by the governmen t at which specified entities will purchase certain basic 
agricultural products ". (Ibid.) China nevertheless agrees with India that the panel "did not address the question 
of what would constitute … 'market price support' or whether the applied administere d price is the sole 
prerequisite to a market price support measure". (Ibid. para. 6)  
160 Costa Rica's third -party submission, para. 12.  Costa Rica also argues that "the  characterization of the 
FRP/SAP as domestic support measures would depend on different e lements, which if taken together, would 
provide the necessary guidance to determine if there has been a violation of … the [Agreement on Agriculture]". 
(Ibid. para. 13)  
161 El Salvador's third -party submission, p. 9.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.41.  The difference in the parties' arguments raises the issue of whether market price support, 
within the meaning of the Agreement on Agriculture, only exist s when the government purchases 
(i.e. pays for) the relevant agricultural product. We note at the outset that the plain meaning of  the 
term "market price support" does not reveal any such limitation . Specifically, the "market price" of 
an agricult ural product is the price of that product in the market162, and "price support" refers to 
"assistance from a government or other official body in maintaining prices at a certain level 
regardless of supply or demand."163 Thus, the concept of market price support, on its face, appears 
to refer to any government measures that set and maintain prices at a certain level, independent of 
the supply and demand dynamics in the market. This would appear to include measures that se t or 
maintain mandatory minimum prices payable by private entities.  
7.42.  Turning to the usage of this term in the Agreement on Agriculture, we recall that the logic of 
the Agreement on Agriculture is that any measure that provides support to domestic agricultu ral 
producers should be included in the calculation of a Member's AMS unless  it is specifically exempted 
or otherwise excluded from that calculation, pursuant to a provision of the Agreement on 
Agriculture.164 We further understand that a mandatory minimum price for agricultural products, 
that is independent of supply and demand in the market, could indeed provide some measure of 
support to producers of agricultural products, regardless of whether the price is payable by private 
entities or the government. C onceptually, therefore, a mandatory minimum price set by the 
government but payable by private entities would seem to constitute "domestic support" to 
agricultural producers and would therefore have to be included in the calculation of a Member's AMS.  
7.43.  We understand India's position to be that such measures are excluded from the calculation of 
a Member's AMS by virtue of paragraph 1 of Annex 3, read in light of paragraph 2. In India's view, 
these provisions establish that only measures in the form of subsidi es (by which India means 
measures entailing government expenditure or revenue foregone) can be taken into account in 
calculating AMS. India's argument rests on two pillars: (i) pursuant to paragraph 1  of Annex  3, 
"market price support" must be in the form of a "subsidy"; and (ii) "subsidies", as defined in 
paragraph  2 of Annex  3, must entail some form of government expenditure or revenue foregone.  
7.44.  The first pillar of India's arguments concerns p aragraph 1 of Annex 3 . This paragraph  
indicates , inter alia , that a Member's 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 
subsidy not exempted from the reduction commitment ('other non -exempt policies' )." India submits 
that the use of the words "any other subsidy" reveals that the preceding measures must also be 
subsidies.165 The complainants, however, variously argue that the phrase "any other subsidy" can 
be interpreted differently: (i) Australia and Guatemala submit that this language could indicate that 
domestic support measures may be, but are not necessarily , in the form of subsidies166; (ii) Brazil  
and Guatemala consider that this language could indicate that the second and third categories of 
domestic support identified in paragraph 1, namely non -exempt direct payments and other 
non-exempt policies , are subsidies167; and finally, Guatemala submits t hat this language could even 
refer exclusively to the third category of domestic support, namely "other non -exempt policies" .168  
7.45.  Based on the text of paragraph 1, we consider that a number of the interpretations put forward 
by the parties are plausible. We  recognize that the phrase "any other subsidy" in paragraph  1 can 
be understood to suggest that all three types of measures (market price support, non -exempt direct 
payments, and other non -exempt policies) are "subsidies".169 At the same time, it is equally  plausible 
 
162 The term "market price" is defined as "[t]he current price asked for a product, commodity, or service 
in a particular market". (Oxford English Dictionary online, definition of "market price, n." 
https:// www.oed.com/view/Entry/247700  (accessed 22 July 2021))  
163 Oxford English Dictionary online, definition of "price support, n." 
https://www.oed.com/view/Entry/151135  (accessed 22 July 2021).  
164 See paragrap hs 7.21 to 7.26 above.  
165 India's second written submission, para. 18. See also India's response to Panel question No. 18(a).  
166 Australia's opening statement at the first substantive meeting, para. 43; Guatema la's second written 
submission, para. 35 . 
167 Brazil's opening statement at the second substantive meeting, paras. 17 -18; Guatemala's second 
written submission, para. 37 . 
168 Guatemala's second written submission, para. 36.  
169 We are aware that the panel in US – Upland Cotton concluded "that all relevant types of support for 
the purposes of the Agreement on Agriculture are subsidies". (Panel Report, US – Upland Cotton , para. 7.422) 
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  that the phrase "any other subsidy" merely identifies the "non -exempt direct payments" and "other 
non-exempt policies" as subsidies. Based on its text and syntax, we consider that paragraph 1 does 
not clarify  whether market price support is a "subsidy".170   
7.46.  Proceeding to the second pillar of India's argument, concerning paragraph 2 of Annex  3, we 
note that this paragraph states that "[s] ubsidies under paragraph 1 shall include both budgetary 
outlays and revenue foregone by governments or their ag ents." India submits that the words 
"include both" limit the defined universe of subsidies  to budgetary outlays and revenue foregone.171 
India argues  that otherwise the term "both" would be redundant.172 Alternatively, assuming  that 
paragraph 2  contains  a non-exhaustive list, India argues that subsidies as defined in paragraph  2 
should at least have the same "characteristics of governmental expenditure or expense from a public 
account", because an unlisted type of subsidy must share a "commonality" with th e subsidies 
specifically listed in paragraph 2.173 The complainants submit that  the term "shall include" merely 
indicates that subsidies include , but are not  limited to , budgetary outlays and revenue foregone.174 
They point to the ordinary meaning of the term "include" and submit that the word "both" is not 
redundant, but rather emphasizes the inclusion of the measures specifically identified.175 In addition, 
Brazil and Guatemala see no basis to presume that other types of subsidies must share a 
commonality  in the form of government expenditure.176 
7.47.  In our view, a textual analysis of paragraph 2 is inconclusive. On the one hand, we agree with 
India that there are instances of usage where the words "includes both" can be understood to mean 
"limited to".177 On th e other hand, we also agree with the complainants that the word "both" can 
function as a signifier of emphasis rather than exclusion, such that the phrase "includes both" is not 
necessarily synonymous with "includes only".178 In our view, the significance o f the word "both", 
 
We note, however, that this finding constituted an obiter dicta observation and the panel itself concluded that it 
was "inappropriate" and "unnecessary" to give "an exhaustive definition of 'support'". (Ibid. para. 7.423) We do 
not consider that the observations  of the panel in US – Upland Cotton relieve us from our duty to make an 
objective assessment of the matter before us in the present dispute, and we therefore address the parties' 
interpretative arguments on their merits.  
170 This analysis also holds for the Spanish and French versions of the text, which refer, respectively, to 
"sostenimiento de los precios del mercado, de pagos directos no exentos o de cualquier otra subvención no 
exenta del compromiso de reducción" and "soutien des prix du marché, de versements directs non exemptés, ou 
de toute autre subvention qui n'est pas exemp tée de l'engagement de réduction".  
171 India's closing statement at the first substantive meeting of the Panel, para . 27; second written 
submission, para. 22 . 
172 India's closing statement at the first substantive meeting of the Panel, para. 27.  India adds that, while 
the term "include" may indicate a non -exhaustive list, when it is followed by the term "both", it loses that 
function.  (India's second written submis sion, para. 22 ) 
173 India's second written submission, paras. 25 and 42.  
174 Brazil's opening statement at the first substantive meeting of the Panel, para. 32; Australia's opening 
statement at the first substantive meeting of the Panel, para. 45; Australia's second written submission, 
paras.  59-61; Guatemala's opening statement at the first substantive meeting of the Panel, para. 3.8.  
175 Brazil 's opening statement at the second substantive meeting of the Panel, para. 22; Australia's 
opening statement at the sec ond substantive meeting of the Panel, para. 31;  Guatemala's opening statement at 
the second substantive meeting of the Panel, para. 2.9. As an example of such usage, the complainants  submit 
that the sentence "t he food at the buffet shall include both soup and pasta " does not imply that only soup and 
pasta are available  at the buffet . (Brazil's opening statement at the second meeting of the Panel, para. 25; 
Australia's closing statement at the first substantive meeting of the Panel, para. 17 ; Guatemala's sec ond written 
submission, para. 20 ) 
176 Brazil's opening statement at the second meeting of the Panel, para. 26; Guatemala's opening 
statement at the second substantive meeting of the Panel, para. 2.11. Guatemala notes that the relevant 
commonality shared by s ubsidies is " that the measure provides support in favour of agricultural producers and 
that this support can be expressed in monetary terms ". (Guatemala's opening statement at the second 
substantive meeting of the Panel, para. 2.11 ) Australia, for its part , argues that the negotiating history of the 
Agreement on Agriculture reveals that "[t] here is no suggestion that the negotiators sought to limit domestic 
support to subsidies. On the contrary, during the negotiations, market price support was conceptualis ed as 
'including any measure  … which acts to maintain producer prices at levels above those prevailing in international 
trade for the same or comparable products '". (Australia's second written submission, para. 66 (quoting 
Chairman 's Note on Options in the Agricultural Negotiations, MTN.GNG/AG/W/1/Add.4 ( Exhibit JE -156), para.  4)) 
177 This makes sense in circumstances where the universe of things being described consists exclusively 
of two things, such as India argues is the case here. An example  of such usage would be a sentence indicating 
that "the chemical composition of water includes both hydrogen and oxygen".  
178 See e.g.  Oxford English Dictionary  online, "both, pron., adv., and adj." 
https://www.oed.com/view/Entry/21867  (accessed 22 July 2021). This would be appropriate in circumstances 
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  where it follows the words "include" or "includes", depends on whether the universe of things being 
described is limited to the things identified in the sentence. In the present proceedings, the very 
issue we are asked to  resolve is whet her the two listed items in paragraph 2 represent the complete 
universe of subsidies (within the meaning of the Agreement on Agriculture). Thus, by relying on the 
word "both" to define the universe of "subsidies", India's argument seems to put the cart bef ore the 
horse.179 We therefore do not consider that, on its face, paragraph 2 limits the scope of subsidies to 
"budgetary outlays" and "revenue foregone".  
7.48.  We are also unpersuaded by India's argument that, even if paragraph 2 is merely indicative, 
it nevert heless necessarily means that "subsidies" must share a commonality with "budgetary 
outlays" and "revenue foregone" in the form of "government expenditure".180 If the drafters had 
intended for such a limitation to appear, they would probably have set it fort h explicitly. We note 
India's contextual argument that "[t]he usage of the phrases 'by virtue of governmental action' and 
'whether or not a charge on the public account is involved' in [Article 9.1(c) of the Agreement on 
Agriculture] … and the deliberate o mission of such wide language in [paragraph 2 of Annex 3] clearly 
establishes that paragraph 2 of Annex 3 does not include private expenditures."181 We note, 
however, that Article 9.1(c) refers exclusively  to "payments … that are financed by virtue of 
gover nmental action".182 We are therefore not convinced that this language is as "wide" as India 
assumes. Furthermore, the language of Article 9.1(c) does not, in our view, clarify whether the 
subsidies  referred to in  paragraph 2 of Annex 3 must exclusively be i n the form of government 
expenditure  or revenue foregone .   
7.49.  We note, at this juncture, that India has failed to identify any provision that , on its face, 
unambiguously limits the scope of market price support to measures entailing government  purchases 
of the relevant agricultural product (i.e. through government  expenditure or revenue foregone) . 
Rather, both pillars of India's interpretation are premised on language that can easily be interpreted 
differently. In this regard, we observe that, in contrast to the ambiguities of paragraphs 1 and 2 of 
Annex 3, other provisions of the Agreement on Agriculture that exclude  certain domestic support 
measures from the scope of Members' reduction commitments do so  clearly and explicitly  
(e.g. Articles 6. 2, 6.4, and 6.5, and Annex 2) . 
7.50.  While India's interpretation of the scope of the term "market price support" focuses on 
paragraphs 1 and 2 of Annex 3, we also consider it pertinent that these are not the only provisions 
of the Agreement on Agriculture that refer to market price support. Importantly, paragraph 8 of 
Annex 3 sets out the methodology to quantify the amount of market price support that a Member 
provides. Under paragraph 8, "market price support shall be calculated using the gap between a 
fixed ex ternal reference price and the applied administered price multiplied by the quantity of 
 
where the universe of items is larger than the two items identified and the inclusion of the two items identified 
is surprising or noteworthy. For instance,  one might say that "visitors to theme parks include both children and 
the elderly". We note that such usage is more natural with the use of the word "may", as in "X may include both 
Y and Z". We nevertheless note that additional ambiguities can arise from  the use of the word "may", and 
consequently the use of the word "shall" instead of "may" in paragraph 2 is not determinative as to the intended 
significance of the words "include both" .  
179 In our view, the French and Spanish versions of the text are also not definitive. The French version 
states that "[l]es subventions visées au paragraphe  1 comprendront à la fois les dépenses budgétaires et les 
recettes sacrifiées par les pouvoirs publics ou leurs agents." The definition of "comprendre" includes "[i]nclur e, 
faire entrer dans un ensemble". (Dictionnaire de l’Académie française,  9e édition  (actuelle), definition of 
"comprendre" https://www.dictionnaire -academie.fr/article/A9C3297  (accessed 22 July 2021)) The Spanish text 
states that "[l]as subvenciones a que se refiere el párrafo 1 comprenderán tanto  los desembolsos presupuestarios 
como los ingresos fiscales sacrificados por el gobierno o los organismos públicos." The Spanish verb "comprender" 
is defined as "[c]ontener  o incluir  en sí algo." (Real Academia Española, definition of "comprender" 
https://dle.rae.es/comprender?m=form  (accessed 22 July 2021 )) We observe that the French and Spanish verbs 
"comprendre" and "comprender" arguably correspond more closely to the English words "comprise" or "consist 
of" than to "include". We also note, however, that a synonym of "comprise" is "include", which ultimately returns 
us to the same in terpretative difficulties we face with the English version.  (Oxford English Dictionary online, 
definition of "comprise, v." https://www.oed.com/view/Entry/37893  (accessed 22 July 2021))  
180 See e.g. India's second written submission, paras. 25 and 42.  
181 India's opening statement at the second substantive meeting of the Panel, para. 16. (underlining 
omitted)  
182 Article 9.1(c) states that export subsidies subject to Members' reduction commitments include: 
"payments on the export of an agricultural product that are financed by virtue of governmental action, whether 
or not a charge on the public account is involved, including payments that are financed from the proceeds of a 
levy imposed on the agricultural pro duct concerned or on an agricultural product from which the exported product 
is derived".  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  production eligible to receive the applied administered price." Furthermore, "[b]udgetary payments 
made to maintain this gap, such as buying -in or storage costs, shall not be included in the AMS."  
7.51.  We note India's argument that paragraph 8 concerns the calculation of market price support 
whereas paragraphs  1 and 2 concern the existence of market price support.183 We are cognizant 
that, on its face, paragraph 8 explains the  calculation methodology for market price support, rather 
than providing a definition per se . In our view, however, by identifying the constituent elements of 
market price support (i.e. the FERP, AAP, and QEP), the calculation methodology set out in 
paragr aph 8 also provides a definition for market price support. We therefore find it unsurprising 
that Annex 4 of the Agreement on Agriculture refers to market price support "as defined" in Annex  3. 
We see no provision in Annex 3, or elsewhere in the Agreement on Agriculture, other than 
paragraph  8, that can be said to define market price support. W e therefore consider paragraph 8 to 
be highly pertinent to our examination of whether market price support can only exist where the 
government purchases or procures t he agricultural product.  Moreover, even if  India w ere correct 
that paragraph 8 merely sets forth a calculation methodology, since it is one of the few provisions 
in the Agreement on Agriculture that refers to "market price support" , and contains a rather d etailed 
methodology for its calculation,  we consider this provision to be highly relevant to our interpretation 
of the term "market price support".  
7.52.  We therefore find that , by defining market price support, paragraph 8 describes the 
circumstances in which m arket price support can be said to exist.184 Paragraph 8 refers to situations 
where an AAP differs from the FERP, and there is a quantity of production eligible to receive that 
AAP. We note that t he word "applied" means "put to practical use".185 The word "administered" can 
mean "managed, controlled, effected, kept running".186 More specifically in the economic sense, and 
in particular in relation to a price or interest rate, "administered" is defined as "determined not by 
market forces but by admi nistrative action (as of a large company or a government)".187 The "applied 
administered price"  therefore refer s to a price for agricultural products that is determined by the 
administrative action of the government  and not by market forces .188 It follows th at if an AAP that 
differs from the FERP can be shown to exist, then market price support can be said to exist, within 
the meaning of the Agreement on Agriculture, provided that there is domestic production that is 
eligible to receive that AAP. Under this i nterpretation of the Agreement on Agriculture, market price 
support could potentially exist in situations where the government does not purchase the relevant 
product.  
7.53.  We further observe that the application of the methodology set out in paragraph 8 entails  a 
relatively complex process of determining the amounts of each component (i.e. AAP, FERP, and QEP) 
and applying the formula. We note that the quantity of production " eligible " to receive the AAP is 
not necessarily the same as the quantity of production t hat actually  receives that price.189 
Furthermore, under the second sentence of paragraph  8, "budgetary payments" made to maintain 
the gap between the AAP and the FERP are not to be taken into account in quantifying the amount 
of market price support that a Member provides. It is therefore clear to us that paragraph  8 sets out 
a methodology for calculating market price support that is divorced from any expenditure incurred 
 
183 India's response to Panel question Nos. 48(a) and (b ). 
184 We note in particular that Annex 4 of the Agreement on Agriculture sets forth a methodology to 
calculate an "equivalent measurement of support" for market price support in situations " where market price 
support as defined in Annex  3 exists  but for which c alculation of this component of the AMS is not practicable ". 
(emphasis added) This indicates that the "existence" of market price support is based on the "definition" 
appearing in Annex 3 and, as explained , the only definition of market price support in An nex 3 is to be found in 
paragraph 8.  
185 Oxford English Dictionary online, definition of "a pplied , adj." https://www.oed.com/view/Entry/9713  
(accessed 22 July 2021) . See also Panel Report, China – Agricult ural Producers , para. 7.177.  
186 Oxford English Dictionary online, definition of "administered, adj" 
https://www.oed.com/view/Entry/2532  (accessed 22 July 2021) . 
187 Oxford English Dictionary online, definit ion of "administered, adj" 
https://www.oed.com/view/Entry/2532  (accessed 22 July 2021) . See also Panel Report, China – Agricultural 
Producers , para. 7.177.  
188 In China – Agricultural Producers , the panel c oncluded that "[t]he AAP … is the price set by the 
government at which specified entities will purchase certain basic agricultural products".  (Panel Report, 
China  - Agricultural Producers , para. 7.177 ) 
189 See e.g. Panel Reports, Korea – Various Measures on Beef , para. 831; China – Agricultural Producers , 
para. 7.296; and Appellate Body Report, Korea – Various Measures on Beef , para. 120.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  by the government in maintaining that market price support, let alone requires that the  government 
should pay the AAP.  
7.54.  We find India's interpretation of the scope of market price support to be difficult to reconcile 
with the definition of, and methodology for calculating, market price support, as set out in 
paragraph  8. As a matter of first impression, the very distinction between "budgetary payments 
made to maintain the [price] gap" and the calculation of the amount of the market price support 
suggests  the possibility that market price support could be maintained through means other  than 
government expenditure.  Moreover, it would be inconsistent, in our view, if the drafters of the 
Agreement on Agriculture had required that market price support only exist in situations of 
government expenditure/revenue foregone, yet stipulated a methodology f or quantifying market 
price support that not only does not rely on the amounts of that government expenditure/revenue 
foregone, but specifically excludes such amounts from the calculation and sets forth a relatively 
complex process of identifying and quant ifying various components for purposes of applying a 
formula.  
7.55.  We further note that the calculation methodologies set out in Annex 3 for quantifying 
"non-exempt direct payments" and "other non -exempt policies" specifically indicate that such 
measures can b e quantified using "budgetary outlays".190 Thus, in the case of quantifying 
non-exempt direct payments or other non -exempt measures, the Agreement on Agriculture 
establishes that budgetary outlays, among other approaches, may be used in the first instance191 
without necessarily assessing the practicability of any alternative methodologies. It stands to reason 
that if market price support only came into existence in situations where a government purchases 
the agricultural product (i.e. through government expen diture or revenue foregone), then the 
Agreement on Agriculture would similarly set out a hierarchically equivalent calculation methodology 
based on budgetary outlays  rather than first requiring the application of a methodology based on an 
AAP, FERP, and QEP .192 The fact that it does not do so strongly suggests that market price support 
can exist even in the absence of government expenditure or revenue foregone.  
7.56.  Having exhausted our rev iew of references to market price support in the Agreement on 
Agriculture, we turn to other relevant context for interpreting the scope of this concept. We note, in 
this respect, that Article 6.2 of the A greement on Agriculture excludes from Members' reduc tion 
commitments " government measures of assistance, whether direct or indirect, to encourage 
agricultural and rural development ". The explicit exclusion of such measures suggests that, in the 
absence of that exclusion, such measures would have been subjec t to reduction commitments. In 
our view, this demonstrates that a potentially broad scope of measures, both direct and indirect, 
constitute "domestic support" measures subject to reduction commitments, for purposes of the 
Agreement on Agriculture.  
7.57.  We also note that t he preamble to the Agreement on Agriculture indicates that one of its 
long-term objectives is to correct and prevent distortions in agricultural markets, including through 
substantial progressive reductions in agricultural support and protection . It is, inter alia , for this 
reason that Members have undertaken certain domestic support commitments, as reflected in 
Article  7 of the Agreement on Agriculture. To the extent that a government applies an  administered 
price for an agricultural product,  different from the market price,  this would appear to be a distortion 
of the market regardless of whether the government pays that price itself or mandates others to do 
so. Moreover, it stands to reason that if Members had wished to exclude a subset of marke t 
 
190 Paragraphs 10 -12 of Annex 3  to the Agreement on Agriculture  concern the calculation of  non-exempt 
direct pay ments, and indicate that " non-exempt direct payments which are dependent on a price gap shall be 
calculated either using the gap between the fixed reference price and the applied administered price multiplied 
by the quantity of production eligible to recei ve the administered price, or using budgetary outlays " and 
"[n]on-exempt direct payments which are based on factors other than price shall be measured using budgetary 
outlays ". (emphasis added) Paragraph 13 of Annex 3, concerning other non -exempt measures,  indicates that 
"the value of such measures shall be measured using government budgetary outlays or, where the use of 
budgetary outlays does not reflect the full extent of the subsidy concerned, the basis for calculating the subsidy 
shall be the gap betwee n the price of the subsidized good or service and a representative market price for a 
similar good or service multiplied by the quantity of the good or service ". (emphasis added)  
191 Paragraphs 10 -13 of Annex 3 of the Agreement on Agriculture  indicate that, for purposes of 
quantifying  either of these types of measures, other methodological approaches are hierarchically equivalent to 
a budgetary outlay approach.  
192 Under paragraph s 1 and  2 of Annex 4, a budgetary outlay methodology for calculating market price  
support is contemplated only in the event that it is not practicable to apply the methodology in paragraph 8 of 
Annex 3 and it is not practicable to calculate the amount of market price support using just the AAP  and QEP. WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  distortions (such as distortions in the form of mandatory minimum prices set by the government but 
payable by private entities) from the scope of Members' reduction commitments, they would 
probably have done so explicitly , as they did with other types of  exclusions. We therefore understand 
that it is consistent with the object and purpose of the Agreement on Agriculture to interpret market 
price support as covering measures that entail price support in the form of mandatory minimum 
prices payable by priva te entities. Furthermore, limiting the scope of market price support to 
measures entailing purchases of the relevant product by the government would seem to undermine 
this important objective of the Agreement on Agriculture, as well as the object and purpo se of those 
provisions (such as Article 7.2(b)) governing Members' domestic support commitments.  
7.58.  To summarize our analysis above, we recall that the plain meaning of "market price support" 
seems to include mandatory minimum prices fixed by the government but payable by private 
entities. When applied to agricultural products, such measures would also appear to constitute 
"domestic support measures" within the meaning of the Agreement on Agriculture. We have 
addressed India's arguments that such measures are  excluded from the calculation of a Member's 
AMS through paragraphs 1 and 2 of Annex 3. In our view, these paragraphs do not, on their face, 
impose any such limitation. While noting the ambiguities in the texts of those paragraphs, we in any 
event consider  that paragraph 8 of Annex 3 defines market price support, and does so in a way that 
suggests that mandatory minimum prices fixed by the government but payable by private entities 
could indeed constitute market price support within the meaning of the Agree ment on Agriculture . 
We also note that India's interpretation of market price support would render the calculation 
methodology set out in paragraph 8 absurd. Finally, we note that Article 6.2 of the Agreement on 
Agriculture suggests a broad scope of measur es that can constitute domestic support, and we 
consider that limiting the scope of market price support to measures requiring governmental 
purchase of the agricultural product would seem to undermine the object and purpose of the 
Agreement on Agriculture.   
7.59.  On the basis of the foregoing, we find that market price support, within the meaning of the 
Agreement on Agriculture, does not require that the government purchase (i.e. through government 
expenditure or revenue foregone) the relevant agricultural produc t. We also find that market price 
support is defined in paragraph 8 of Annex 3, and can be said to exist when an AAP for a basic 
agricultural product differs from the FERP,  provided that there is domestic production that is eligible 
to receive that AAP. In coming to this conclusion, we do not consider it necessary to resolve the 
textual ambiguities of paragraphs 1 and 2 of Annex 3. I n our view, regardless of these ambiguities, 
the Agreement on Agriculture is clear that market price support does not require government 
procurement of or payment for the relevant agricultural product. It is therefore unnecessary for us 
to express a view on whether paragraph 1 define s market price support as a subsidy or whether 
paragraph 2 extends the scope of subsidies beyond m easures requiring government expenditure.  
7.60.  We also wish to note that our foregoing interpretation is consistent with the interpretation 
relied upon by India itself in concluding its Schedule. Specifically, India's Schedule contains 
calculations of market pr ice support for the years 1986 -88 on the basis of a measure that fixed a 
minimum price for sugar cane that was payable by private entities , and not the government.193 India 
argues that, "[i] f a Member's Schedule is relied upon to interpret the meaning of 'market price 
support'…, this will lead to a situation where there will be multiple meanings of the same terminology 
under the [Agreement on Agriculture] depending upon the Schedule of a Member."194 India also 
refers195 to a statement by the Appellate Body t hat "[t] he 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, unless that practice amounts to 'subsequent practice in the application of the treaty' within 
the meaning of Article 31(3)(b) of the Vienna Convention ."196 We observe  that Members' Schedules 
have, in the past, been used by panels and the Appellate Body to interpret Members' substantive 
obligations, on the basis that the Schedules constitute part of the  covered agreements.197 We also 
note that neither India nor any other party has pointed to any Schedule that evinces an alternative 
interpretation of market price support. We do not consider it necessary to address, as a general 
matter, the relevance of Mem bers' Schedules in interpreting the covered agreements. It suffices, for 
 
193 G/AG/AGST/IND, p. 28; Sugarcane  (Control) Order 1966  (prior to 2009) , (Exhibit JE -148), Clause 3(1). 
194 India's second written submission, para. 50 . 
195 India's opening statement at the second substantive meeting of the Panel, para. 54 . 
196 Appellate Body Report, Chile - Price Band System , para. 272 . 
197 See e.g. Appellate Body Report, US – Gambling , para. 182; Panel Report, China – Agricultural 
Producers , para. 7.263 . WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  our purposes, to note that India's Schedule was concluded on the basis of the same interpretation 
as our own,  and there is no indication  that any Member's Schedule contradicts that in terpretation.  
7.61.  We further note that our interpretation of market price support within the meaning of the 
Agreement on Agriculture is consistent with prior panel reports. In Korea – Various Measures on 
Beef, the panel pointed out that " the quantification of market price support in AMS terms is not 
based on expenditures by government. Market price support as defined in Annex 3 can exist even 
where there are no budgetary payments."198 The panel in China – Agricultural Producers similarly 
found that the AAP " is the price set by the government at which specified entities  will purchase 
certain basic agricultural products".199 We note India's arguments that the findings of these panels 
are not relevant to the present disputes.200 For the purpose of resolving the presen t dispute s, we do 
not consider it necessary to address as a general matter the precedential value of prior panel or 
Appellate Body reports. We simply note that the panels in Korea – Various Measures on Beef  and 
China – Agricultural Producers interpreted the term "ma rket price support"  as we do in this report.  
7.1.3.2.3   India's market price support  to sugarcane producers  
7.62.  We recall that, under paragraph 8 of Annex 3 of the Agreement on Agriculture, "market price 
support shall be calculated using the gap between a fixed external  reference price [FERP] and the 
applied administered price [AAP] multiplied by the quantity of production eligible  [QEP]  to receive 
the applied administered price". The determination of India's AMS to sugarcane producers for each 
season from 2014 -15 to 201 8-19 requires the application of this methodology .  
7.63.  In accordance with that approach, the complainants have adduced evidence and 
argumentation regarding the relevant FERP, AAP, and QEP, and submitted calculations of India's 
market price support to sugarcan e producers, for each season from 2014 -15 to 2018 -19.201  
7.64.  India does not contest the accuracy of the data or other evidence adduced by the 
complainants, nor does India contest the accuracy of the complainants' calculations based on that 
data and evidence. India maintains, however, that the burden is on the complainants to establish 
that India is acting inconsistently w ith Article 7.2(b), and that India's silence regarding the 
complainants' evidence and calculations should not be construed as agreement or assent.202 
7.65.  We have closely scrutinized the evidence and data adduced by the complainants, as well as 
the complainants'  calculations. In light of the complexity and level of detail of the complainants' 
evidence and calculations, we provide a detailed description of our review in the Appendix to this 
Report. Our findings set out in the Appendix constitute an integral part o f this Report.  
7.66.  As explained in greater detail in the Appendix, we consider that the complainants have 
sufficiently demonstrated that the FRP and SAPs do indeed constitute AAPs within the meaning of 
paragraph 8 of Annex 3. Moreover, we consider that the co mplainants have provided sufficient 
evidence to determine the FERP and QEP for each season from 2014 -15 to 2018 -19. We therefore 
consider that the complainants have adequately met their burden of demonstrating the existence of 
market price support, as well  as the amount of that market price support, for each sugar season 
from 2014 -15 to 2018 -19.   
7.67.   For the reasons set out in full in the Appendix, we find that the total amount of market price 
support to sugarcane producers maintained by India in each sugar s eason from 2014 -15 to 2018 -19 
was as follows:  
 
198 Panel Report, Korea – Various Measures on Beef , para. 827 .  
199 Panel Report, China – Agricultural Producers , para. 7.177 . (emphasis added)  
200 India argues that:  there is no rule of binding precedent in WTO dispute settlement; the ruling of a WTO 
panel is based on the facts and issues presented before it and does not have any precedential value; neither of 
these panel reports addressed "the issue that is central t o the present disputes i.e. what constitutes market price 
support or when a market price support can be said to exist within the meaning of Annex 3"; and in all previous 
instances where panels have adjudicated issues pertaining to market price support, the  market price support 
measures involved government purchases of the agricultural product in question. (India's first written 
submission, paras.  66-79; closing statement at the first substantive meeting of the Panel, paras. 35 -36; second 
written submission,  para. 30)  
201 See Appendix to the Panel Report.   
202 India's responses to questioning at the first substantive meeting of the Panel.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Sugar s eason  Market price support  (INR million)  
2014-15 903,750.80  
2015-16 880,418.99  
2016-17 815,045.69  
2017-18 1,072,685.61  
2018-19 1,110,085.53  
 
7.68.  In section 7.1.4 below, we assess whether India's AMS to sugarcane producers, including its 
market price support, was in excess of the permitted amount.  
7.1.3.2.4   Budgetary payments made  to maintain the price gap  
7.69.  We recall that, under the methodology set out in paragraph 8 of Annex 3 of the Agreement 
on Agriculture, "[b]udgetary payments made to maintain [the gap between the FERP and the AAP], 
such as buying -in or storage costs, shall not  be included in the AMS." The inclusion of this language 
in paragraph 8 indicates that: (i)  certain measures may be adopted  by Members to maintain the gap 
between the AAP and the FERP (for example, buying -in or storage costs, or other measures to 
facilitat e, or enable, the operation of the AAP) ; and (ii) such measures should  not be taken into 
account when quantifying the amount of market price support provided by the Member, to the extent 
that the application of the methodology articulated in the first sent ence of paragraph  8 is practicable.  
7.70.  The complainants identif y a number of measures that, in their view, constitute "budgetary 
payments made to maintain" India's  market price support .203 Specifically, although the complainants 
do not include these measures i n their quantification of India's market price support, they submit 
that the se are measures through which India provides domestic support to sugarcane producers.204 
Australia requests that we explicitly identify these measures as "measures through which India is 
providing market price support above de minimis ".205  
7.71.  India does not comment on Australia's request or the complainants' characterization of these 
measures.  
7.72.  We recall that the assessment of whether India is acting inconsistently with Article 7.2(b) 
entails a comparison between the am ount of domestic sup port for sugarcane producers that India is 
permitted to provide, and the amount of domestic support to sugarc ane producers that India actually 
provides. In determining the amount of domestic support actually provided by India, the rules in the 
Agreement on Ag riculture make clear  that market price support should be included in the calculation, 
but budgetary paymen ts made to maintain that market price support (i.e. to maintain the gap 
between the AAP and FERP) should not be taken  into account. Consequently, in examining whether 
India is acting inconsistently with Article 7.2(b), i t is not necessary for us  to make  the findings 
requested by Australia .  
7.73.  To the extent that Australia is concerned that our findings with regard to Article 7.2(b) might 
be read as not covering all relevant measures through which India maintains market price support206, 
we wish to emphasize t hat, for India to be in compliance with Article 7.2(b), the total amount of 
non-exempt product -specific domestic support provided to sugarcane producers must not exceed 
10% of the total value of sugarcane production in a given season. If India were to elim inate aspects 
of its market price support regime while continuing to provide budgetary payments that previously 
maintained the gap between the FERP and the AAP, it might well be that such budgetary payments 
would, in the absence of a mandatory minimum pric e, constitute domestic support to sugarcane 
producers that would be included in the calculation of India's AMS to sugarcane producers. We do 
 
203 Brazil's first written submission, paras. 161 -162 and Appendix A (stating that "the programs listed in 
Appendix A may be direct payments made to maintain the price gap, within the meaning of paragraph 8" 
(emphasis added)); Australia's first written submission, paras. 181 -185 and Annexes A, B, C, D -2, D-3 and E; 
Guatemala's first written submission, paras. 87 -96 and 166 -168. 
204 Brazil's first written submission, paras. 161 -162; Australia's first written submission, paras. 185 -186; 
Guatemala's first written submission, para. 167.  
205 Australia's first written submission, para. 186.  
206 Australia states that, "[i] f the amount of mar ket price support is inconsistent with India's obligations, 
then all the measures through which the price 'gap' has been or is being achieved (and that are identified in the 
relevant panel request) should be covered by the Panel's findings as to whether im permissible levels of 
non-exempt domestic support have been provided in certain years through the acts or omissions of a Member ." 
(Australia's response to Panel question No. 20(b), para. 50)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  not, however, consider it necessary in the present  proceedings to identify measures which, it is 
uncontested, shoul d not be taken into account in calculating India's AMS to sugarcane producers 
during the sugar seasons 2014 -15 to 2018 -19.  
7.1.3.3   Non-exempt direct payments and other non -exempt policies  
7.1.3.3.1   Overview  
7.74.  In addition to their assertions regarding India's alleged market p rice support, the 
complainants submit  that a number of State Governments in India maintain other forms of 
non-exempt product -specific domestic support to sugarcane producers, which must also be included 
in the calculation of India's AMS to sugarcane produc ers. Specifically, the complainants identify 
payments or policies allegedly maintained by three States in India, namely, Tamil Nadu, Andhra 
Pradesh, and Karnataka , during certain of the  sugar seasons from 2014 -15 to 2018 -19.207 According 
to the complainants, these three States provide domestic support to sugarcane producers in the 
form of "non -exempt direct payments"  or "other subsidies not exempted from the reduction 
commitment ('other non -exempt policies')", within the meaning  of paragraph 1 of Annex 3 to the 
Agreement on Agriculture .208 In the complainants' view, none of the alleged direct payments or other 
policies are exempt under any provision of the Agreement on Agriculture209 and therefore they 
should be included in the cal culation of India's AMS to sugarcane producers .210 Moreover, t he 
complainants consider that the State -level support is provided in addition to the Cen tral and State 
Governments ' provision of  market price support, thus differentiating it from the measures that are 
excluded from the calculation of India's AMS because they constitute "budgetary payments made to 
maintain" a gap  within the meaning of paragraph 8 of Annex 3 .211 
7.75.  India argues that, without prejudice to the complainants' characterization of India's al leged 
non-exempt direct payments or other non -exempt policies, the complainants "have not provided any 
evidence/calculation as to how the total support under these other alleged domestic support 
measures (i.e. other than the alleged support under FRP/SAP m easures) exceeds the de minimis 
limit applicable to India" .212  
7.76.  Our understanding of the rules in the Agreement on Agriculture regarding the calculation of a 
Member's AMS is set out in section 7.1.3.1  above. To recall, the Agreement on Agriculture prescribes 
that any measure by a Member that provides support to its agricultural producers should, in 
principle, be included in the calculation of a Member's AMS unless that measure is shown to be 
exempted, or otherwise excluded, from that calculation under the Agreement on Agriculture. We 
further recall that, pursuant to paragraph 1 of Annex 3 of the Agreement on Agriculture, 
"non-exempt direct p ayments" and "other non -exempt policies" are to be included in the calculation 
of a Member's AMS.  
7.77.  We note, in this respect, that India has not argued that any of the payments or policies 
allegedly maintained by Tamil Nadu, Andhra Pradesh, and Karnataka  are exempt  or otherwise 
excluded from the calculation of India's AMS to sugarcane producers. We therefore understand that 
India's main argument  with respect to these alleged State-level payments and policies is that the 
complainants have failed to demonstrate  that the alleged amounts provided thereunder  exceed the 
 
207 See e.g. B razil's first written submission, para. 163 and Appe ndix B; Australia's first written submission, 
paras. 190 -194, 195 -197, 198-203, Annexes E -1, E-5 and E -8; Guatemala's first written submission, 
paras. 170-175, 176 -179, 180 -185, and Table 12(Rev.) Following the second substantive meeting of the Panel, 
Guatemala withdrew its assertions regarding Karnataka's alleged payments and omitted the alleged amounts 
from its calculations of India's AMS. (Guatemala's comments on India's response to Guatemala's question No. 3 ) 
208 See e.g. Brazil's first written submission , para. 163; Australia's first written submission, para. 189; 
Guatemala's first written submission, paras. 167 -169 and Table 12(Rev.)  
209 Specifically  referring to Articles 6.2, 6.5 , and Annex 2  of the Agreement on Agriculture.  
210 Brazil's first written submission, para. 163; Australia's first written submission, para s. 193, 197, and 
202; Guatemala's first written submission, para s. 172, 177, and 182.  
211 Brazil's first written submission, para. 163 ; Australia's first written submission, paras. 193, 197, and 
202; Guatemala's first written submission, paras. 173, 177 , and 181. To recall, paragraph 8 of Annex 3 states 
that "[b]udgetary payments made to maintain [the gap between the FERP and the AAP], s uch as buying -in or 
storage costs, shall not be included in the AMS."  (See section 7.1.3.2.4  above ) 
212 India's first written submission,  paras. 81 -83; second written submission, para. 6.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  de minimis level of  product -specific support that India is permitted to provide to sugarcane 
producers, pursuant to Article 7.2(b)  of the Agreement on Agriculture .213 
7.78.  We are aware of t he complainants ' argument that, since India exceeds the applicable de 
minimis  level through market price support alone, it may not be necessary for us to include the  
alleged State-level payments or policies  in the calculati on of India's AMS to sugarcane  producers .214 
The complainants ma intain , however,  that regardless of whether we include the payments or polices 
in the calculation , India's compliance obligation s with respect t o Article 7.2(b) of the Agreement on 
Agriculture would encompass  all non-exempt  product -specific domestic support maintained by 
India.215 We note that the complainants assert the existence of the three State-level measures at 
issue and argue that, together with market price support, such measures contribute to India's 
alleged violation of its obligation under Article 7.2(b).  According to paragraph 1 of Annex 3 of the 
Agreement on Agriculture, measures in the form of non -exempt direct payments and other 
non-exempt policies must, in principle, be taken into account in calculating a Member's 
product -specific AMS. We see such measures as being different from measures such as budgetary 
payments made to maintain  market price support, which, pursuant to paragraph 8 of Annex 3, 
should not be included in that calculation.216 On this basis, we consider it appropriate to address the 
complainants' arguments regarding the alleged non -exempt direct payments and other non -exempt 
policies in favour of sugarcane producers in the States of Tamil Nadu, Andhra Pradesh, and 
Karnataka , in order to secure a positive solution to these disputes.  
7.79.  With respect to the precise calculation methodologies for "non -exempt direct payments" an d 
"other non -exempt policies", the complainants assert that the Panel may use the "budgetary outlay" 
approach pursuant to paragraphs 10  to 13 of Annex 3 of the Agreement on Agriculture.217 In the 
complainants' view, this approach is appropriate for the calc ulation of either form of domes tic 
support .218 India does not contest the use of the "budgetary outlay" approach to quantify the alleged 
State-level support .219  
7.80.  Paragraphs 10 to 12 of Annex 3 of the Agreement on Agriculture contain rules for quantifying  
the level of domestic support provided through "non -exempt direct payments" : 
10. Non-exempt direct payments: non -exempt direct payments which are dependent 
on a price gap shall be calculated either using the gap between the fixed reference price 
and the a pplied administered price multiplied by the quantity of production eligible to 
receive the administered price, or using budgetary outlays.  
11. The fixed reference price shall be based on the years 1986 to 1988 and shall 
generally be the actual price used for determining payment rates.  
12. Non-exempt direct payments which are based on factors other than price shall be 
measured using budgetary outlays.  
7.81.  Regarding the quantification of "other non -exempt policies", p aragraph 13 of Annex 3 
provides :  
13. Other n on-exempt measures, including input subsidies and other measures such 
as marketing -cost reduction measures: the value of such measures shall be measured 
using government budgetary outlays or, where the use of budgetary outlays does not 
 
213 We recall India's position that the complainants have not demonstrated the existence of any market 
price support to sugarcane producers in India. (See paras. 7.29-7.30 above)  
214 Brazil's responses to Panel question No. 23(a), para. 25, and No. 73, paras. 91 -94; Australia's first 
written submission, para. 1 49; response to Panel question No. 23(a), para. 53 ; Guatemala's response to Panel 
question No. 23(a), para s. 45-46. 
215 See e.g. Brazil's response to P anel question No. 23(a), para. 26; Australia's response to Panel question 
No. 23(a), para. 54; Guatemala's response to Panel question No. 23(a), para.  47. 
216 See section 7.1.3.2.4  above.  
217 Complainants' responses  to Panel question No. 49.  
218 Complainants' responses to Panel question No. 49. The complainants add that, to the extent the Panel 
finds that the three States  provide domestic support in addition to market price support , that support can be 
calculated using  budgetary outlays , regardless of the precise characterization of each payment or policy. (Ibid.) 
We address this issue in the following subsections, as necessary.  
219 India's response to Panel question No. 49.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  reflect the full ext ent of the subsidy concerned, the basis for calculating the subsidy 
shall be the gap between the price of the subsidized good or service and a representative 
market price for a similar good or service multiplied by the quantity of the good or 
service.  
7.82.  In light of the rules set out in paragraphs 10 to 13 of Annex 3, we agree that the "budgetary 
outlay" approach is an appropriate methodology to calculate the amount of domestic support 
provided through the alleged non -exempt direct payments and other non -exemp t policies. We note, 
in this respect, that in support of their factual assertions, the complainants adduce official State 
Government Budget documents for a number of relevant financial years. From an evidentiary point 
of view, the parties agree that the in formation contained in the Budget documents for a particular 
financial year reveals budgetary information relating to the sugar season preceding that financial 
year.220  
7.83.  With these considerations in mind, we proceed  to our assessment of the parties' argumen ts 
and evidence concerning each of the three alleged State-level policies and payments identified by 
the complainants.  
7.1.3.3.2   Tamil Nadu's transitional production incentives  
7.84.  The complainants argue that the State Government of Tamil Nadu provides domestic support 
to sugarcane producers through direct payments, referred to as "transitional production incentives". 
They also point out that Tamil Nadu is one of a number of Indian States that are transitioning from 
the SAP to a system of revenue -sharing -based sugarcane prices.221 To facilitate the transition 
process, the complainants argue that Tamil Nadu provides direct payments to sugarcane farmers. 
According to the complainants, the funds received by sugarcane farmers through these direct 
payments are over and above th e funds received through the FRP. The complainants submit that 
Tamil Nadu's Budget Publication indicates certain amounts budgeted under the entry "Production 
Incentive to Sugarcane Farmers" for the 2017 -18 and 2018 -19 sugar seasons.222 The complainants 
characterize these payments as "non -exempt direct payments", within the meaning of paragraph 1 
of Annex 3 of the Agreement on Agriculture.223 For the reasons outlined in paragraph 7.74 above, 
they also argue that the amounts allegedly disbursed to sugarcane farmers for this purpose are not 
exempt and therefore should be included in the calculation of India's AMS.224 
7.85.  India does not raise any arguments regarding Tamil Nadu's alleged transitional production 
incentives.  
7.86.  We begin our analysis by observing  that, through the Tamil Nadu Sugarcane (Regulation of 
Purchase Price) Act of 2018, Tamil Nadu did indeed replace its SAP with a system of 
revenue -sharing -based sugarcane price.225 We also understand that, as of September 2018, Tamil 
 
220 Brazil's first written submission, fn 99 to Table 9 on p. 24 and response to Panel question No. 28(a), 
para. 51; Australia's response to Panel question No. 28(c), para. 85; Guatemala's response to Panel question 
No. 28(b), fn 102 t o Table 12 at para. 67. We note that India's financial year begins in April of a given year and 
ends in March of the following year, unlike the sugar season which begins in October of a given year and ends 
in September of the following year. (India's first  written submission, para. 18 ; G/AG/AGST/IND, p. 4, para. 6 ) 
221 Brazil's first written submission, para. 163; Australia's first written submission, para. 198; Guatemala's 
first written submission, para. 81.  
222 Brazil's first written submission, para. 163 and  Appendi x B-2; Australia's first written submission, 
paras.  198-203 and Annex E -8; Guatemala's first written submission, paras. 81 -86 and 176 -179. See also 
complainants' responses to Panel question No. 73.  
223 Brazil's first written submission , para. 163; Australia's first written submission , para. 202; Guatemala's 
first written submission , para s. 176-177 and Table 12(Rev.) . Australia and Guatemala  submit, alternatively , that 
these payments should be included in the calculation "on the basis th at they achieve an AAP" (Australia's first 
written submission , para. 203 ) or that they  "effectively extended the validity of the SAP for sugar season 2016/17 
to sugar seasons 2017/18 and 2018/19" . (Guatemala's first written submission , para.  179) 
224 Brazil' s first written submission , para. 163; Australia's first written submission , para. 202; Guatemala's 
first written submission , para. 177.  
225 Tamil Nadu Sugarcane (Regulation of Purchase Price) Act , 2018, (Exhibit JE -65), Section 2(1) (o). We 
understand that the transition to the revenue -sharing system  was part of  a series of recommendations for the 
liberalization of India 's sugar sector . (Rangara jan Committee Report, (Exhibits AUS -8, GTM -31, para. 5)  The 
Tamil Nadu Sugarcane (Regulation o f Purchase Price) Act  of 2018 provides that the Sugarcane Control Board 
"shall … decide the revenue sharing based sugarcane price payable to the sugarcane growers, by the concerned 
 WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Nadu had not yet implemented the revenue -sharing system  and continued to be in a transition 
process.226 We note that, in order to "facilitate th[at] transition" and to "protect th e interests of 
[sugarcane] farmers", for the 2017 -18 sugar season Tamil Nadu introduced the "transitional 
production incentive".227 Through the transitional production incentive, the State Government 
endeavoured to assure sugarcane producers of "a price not  less than the 2016 -17 crushing season 
State Advised Price"228, by paying the difference between the amount of the SAP for the 2016 -17 
sugar season (i.e. the last SAP prior to the introduction of the transitional production incentive) and 
the FRP amount for  the 2017 -18 sugar season.229 In March 2019, Tamil Nadu extended the 
application of the "transitional production incentive" to the 2018 -19 sugar season.230 Therefore, 
similar to the previous season, the State Government paid the difference between the SAP for the 
2016-17 sugar season and the FRP for the 2018 -19 sugar season.231  
7.87.  Turning to the precise amounts of budgetary outlays, we note t he complainants ' assertion  
that the official Tamil Nadu Budget Publication covering  the 2017 -18 and 2018 -19 sugar seasons 
indicates certain amounts budgeted for the purpose of the "transitional production incentives".232 
We further note that, in response to a question from th e Panel, the complainants submitted more 
recent evidence, seeking to demonstrate the amounts actually disbursed by the State Government 
to sugarcane producers, on the basis of which the complainants have updated their calculations of 
India's AMS to sugarca ne producers .233 In this regard, we  also note  Brazil's argument that, under 
India's budget approach, information on actual government expenditure may be available only two 
or three years after the initial budget estimate.234 Thus, b ased on the most recent information, we 
understand that, as a "transit ional production incentive", Tamil Nadu disbursed INR 1,364.30 million 
directly to the bank accounts of 146,058 sugarcane farmers for the 2017 -18 sugar season235 and 
INR 980.30 million to the bank accounts of  100,918  sugarcane farmers  for the 2018 -19 sugar 
season.236 
7.88.  It is uncontested  that these transitional production incentives constitute "direct payment s" 
from the State Gove rnment to sugarcane producers. Indeed, w e note  that, in its ordinary meaning, 
the term "payment" means " [a] sum of money (or equivalen t) paid or payable".237 In the context of 
paragraph 1 of Annex 3, the payment must be (i) "non -exempt", meaning that it must not be 
exempted, or otherwise excluded, from  the calculation of a Member's AMS, pursuant to the 
Agreement on Agriculture , and (ii) "direct" , meaning , inter alia , that the payment must be made  
"without intervening factors or intermediaries".238 We also recall that, pursuant to paragraph 3 of 
Annex 3 of the Agreement on Agriculture, "[s]upport at both the national and sub -national level shall 
be included " in the calculation of a Member's product -specific AMS.  
7.89.  In the circumstances before us , we observe that Tamil Nadu  has published, through an official 
State Order, "Detailed guidelines for implementation of disbursement of transitional production 
incentive directly to the farmers  through Direct Benefit Transfer".239 We note that these guidelines 
 
sugar factories". Moreover, the sugarcane price is defined as the higher va lue among the price arrived at a sum 
equal to (i) 70% of the "ex -factory basic value of sugar and the primary by -products such as bagasse, molasses 
and press mud"; or (ii) 75% of the "ex -factory basic value of sugar alone". (Tamil Nadu Sugarcane (Regulatio n 
of Purchase Price) Act , 2018, (Exhibit JE -65), Sections 6( a), 9(1)(i) and (ii))  
226 Order of 17 September 2018, (Exhibit  JE-88), para. 4.  
227 Order of 24 July 2018, (Exhibit AUS -54). See also Order of 7 March 2019, ( Exhibit JE -136), p. 1; 
Budget Speech of 15 March 2018, (Exhibit JE -89), para. 29.  
228 Tamil Nadu Policy Note 2020 -21, (Exhibit JE -169), p. 362 ; Order of 17 September 2018, 
(Exhibit  JE-88), para. 6 . 
229 See e.g.  Order of 7 March 2019, (Exhibit JE -136), para. 3.  
230 Order of 7 March 2019, (Exhibit JE -136), paras. 7 -8. 
231 See e.g. Tamil Nadu Policy Note 2020 -21, (Exhibit JE -169), p. 362 -363. 
232 Tamil Nadu Budget Publication  for the 2019-2020 financial year, (Exhibit JE -137), p. 71.  
233 Complainants' responses to Panel question No. 73 (referring to Tamil Nadu's Policy Note, 2020 -21, 
(Exhibit JE -169), p. 362).  
234 Brazil's response to Panel question No. 28(d), para. 57.  
235 Tamil Nadu Policy Note 2020 –21, (Exhibit JE -169), p. 362.  
236 Tamil Nadu Policy Note 2020 –21, (Exhibit JE -169), pp. 362 -363. 
237 Oxford English Dictionary online, definition of "payment, n.1" 
https://www.o ed.com/view/Entry/139189  (accessed 22 July 2021). In this regard, we also recall the Appellate 
Body's finding  that the term "payment" denotes "a transfer of economic  resources".  Appellate Body Report, 
Canada – Dairy , para. 107; EC – Export Subsidies on Sugar, para. 259.  
238 Oxford English Dictionary online, definition of "direct, adj. and adv." 
https://www.oed.com/view/Entry/53293  (accessed 22 July 2021).  
239 Order of 24 July 2018, (Exhibit AUS -54), Annexure. (underlining added)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  describe , inter alia , the eligibility criteria  for sugarcane farmers to receive the transitional production 
incentive s, the implementation phases, and the procedure for the disbursement of the allocated 
amounts of money.  Specifically, we understand from these guidelines that the State Director of 
Sugar prepared a database of eligible farmers, based on the information previously submitted by 
the sugar mills, including information on the quantity of sugarcane supplied by each farmer, along 
with the farmer's land holding credentia ls and bank account details.240 Once the database  of farmers 
was verified and published, the State Director of Sugar was mandated to transfer  the amount  of 
money directly into the sugarcane farmers' bank accounts.241 Furthermore, we  note that none of the 
parties argue, nor can we see any reason to consider, that the payments provided under the 
transitional production incentive are exempted , or otherwise excluded , from the calculation of India's 
AMS to sugarcane producers.  
7.90.  In light of the above, we  find that,  through the transitional production incentive, Tamil Nadu 
provided domestic support to sugarcane producers in the form of "non -exempt direct payments", 
within the meaning of paragraph 1 of Annex 3 of the Agreement on Agriculture, during the 2017 -18 
and 20 18-19 sugar seasons.242 Consequently, and in accordance with the budgetary outlay 
methodology described in paragraph 10 of Annex 3, we include the amounts indicated in 
paragraph  7.87 in our calculation of India's AMS to sugarcane producers for those two sugar 
seasons.243 
7.1.3.3.3   Andhra Pradesh's purchase tax remittances  
7.91.  The complainants s ubmit  that the State Government of Andhra Pradesh remits sugarcane 
purchase taxes to sugarcane producers, thus providing domestic support that should be included in 
the calculation of India's AMS to sugarcane producers. Specifically , the complainants argue that  
Andhra Pradesh budgeted an amount of INR  66 million under the budget entry "Assistance to 
Co-operative Sugar Factories towards reimbursement of Purchase Tax incentives" for the 2014 -15 
and 2015 -16 sugar seasons.244 The complainants argue  that the  sugarcane  purchase tax that would 
normally be paid by sugar mills to the State Government was foregone in favour of sugarcane 
producers.245 As a result, in both of these  season s, sugarcane producers in Andhra Pradesh allegedly 
received funds over and above the  amoun t of the  FRP. Brazil and Australia argue that , there is lack 
of evidence or clarity as to exactly how these funds were transferred  to sugarcane farmers.246 These 
factual uncertainties result in somewhat different views among the complainants as to whether t he 
purchase tax remittance constitutes a "non -exempt direct payment" or an "other non -exempt 
policy".247 In any event, all complainants submit that sugarcane producers in Andhra Pradesh 
 
240 Order of 24 July 2018, (Exhibit AUS -54), Annexure, para. III(i).  
241 Order of 24 July 2018 , (Exhibit AUS -54), paras. 3 –5, 9, Annex ure. para. III.  We also note that the 
terms "direct", or "directly" appear in subsequent officia l State publications relating to the transitional production 
incentive. (See e.g. Budget Speech of 15 March 2018, (Exhibit JE -89), para. 29)   
242 We therefore do not consider it necessary to engage with Australia and Guatemala's alternative 
arguments regardi ng Tamil Nadu's transitional production incentive, outlined in fn 223 to para. 7.84 above.  
243 See section s 7.1.3.3.5  and 7.1.3.4  below.  
244 Brazil's first written submission, para. 163 and A ppendi x B-1; Au stralia's  first written submission, 
paras. 190 -194 and Annex E -1; Guatemala's first written submission, paras. 97 -99 and 180 -184. Initially , the 
complainants  argued that Andhra Pradesh remitted sugarcane purchase taxes also  during  the 2016 -17 sugar 
season.  (Brazil's first written submission, para. 163; Australia's first written submission, para. 191; Guatemala's 
first written submission, para s. 98 and 183 ) They subsequently withdrew those  arguments and omitted the 
alleged amounts from their calculation s of India's AMS  to sugarcane producers . (Complainants' responses to 
Panel question No. 28(d))  
245 Brazil's first written submission, para 163; Australia's first written submission, para. 190; Guatemala's 
first written submission, para s. 97 and 180 . 
246 Brazil's responses to Panel question No. 50, para. 26, and No. 74(b), para. 98; Australia's response to 
Panel question No.  50, para. 8.  
247 Brazil and Australia describe two possibilities: (i) the pu rchase tax amount that would normally "be 
remitted by the sugar factories to the [government]" was waived and instead "passed on to the cane suppliers" 
or sugarcane  farmers, in which case it would be an "other non -exempt policy" in the form of revenue fore gone; 
or (ii) it may be that the State Government reimbursed the sugar mills the purchase tax amount so that it could 
be paid to the sugarcane farmers, in which case it would qualify as "non -exempt direct payment". (Brazil's first 
written submission, para.  163; and response to Panel question No. 50; Australia's first written submission, 
para. 193; and response to Panel question No. 50 (referring to CACP Price Policy for Sugarcane : 2018-19 Sugar 
Season, (Exhibit JE -52), p. 57, Annex Table 2.2)) In Guatemala 's view , Andhra Pradesh provides support in the 
form of an "other non -exempt policy", because "measures consisting of revenue foregone would not fall within 
the category of 'direct payment', but rather under the category of an 'other subsidy'." We note that  Guatemala  
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  received non -exempt domestic support over and above  the FRP and which therefore should be 
included in  India's AMS  to sugarcane producers .248 
7.92.  India argues that the  Andhra Pradesh purchase tax remittance  was discontinued as of 
November 2018.249 India also contends that  no amounts were disbursed to sugarcane producers for 
this budget entry for the 2015 -16 sugar season, and that "no … document has been placed on record 
showing actual receipt and disbursement for [the] 2014 -15 sugar season".250 
7.93.  We begin our analysis by noting that  the alleged domestic support measure at issue, which 
the complainants assert should be included in the calculation of India's AMS, is the set of so -called 
"purchase tax remittances" referred to by the complainants. According to the complainants, these 
purchase tax remittances were in the form of budgetary disbursements by the State Government in 
favour of sugarcane producers. Hence, the question of whether we must include such remittances 
in the calculation of India's AMS to sugarcane producers, depends on  whether such purchase tax 
remittances existed – in other words, whether such disbursements were actually made.   
7.94.  In seeking to substantiat e their arguments regarding the existence and amounts of support 
allegedly provided by Andhra Pradesh to sugarcane pro ducers , the complainants mainly rely on two 
types of evidence: (i) two annual publications by the Commission for Agricultural Costs and Prices 
(CACP )251, concern ing India's "Price Policy for Sugarcane"  for the 2018 -19 and 2019 -20 sugar 
seasons  that also inc lude certain information relating to past sugar seasons,  and (ii) the annual 
publications of Andhra Pradesh's Budget Estimates for five consecutive financial years  (2015 -16 to 
2019-20), covering the 2014 -15 to 2018 -19 sugar seasons . Below, we examine the c omplainants' 
arguments in relation to these two types of evidence in turn.  
7.95.  Regarding the annual CACP publications , we observe that, in support of their assertions 
concerning the 2014 -15 sugar season, the complainants rely on a single entry  contained in the  CACP 
publication for the 2018 -19 sugar season,  which indicates that the sugarcane price paid by sugar 
mills to sugarcane producers in Andhra Pradesh in  the 2014-15 sugar season included the "FRP & 
purchase tax incentive of Rs.6 per quintal".252 The publica tion goes on to indicate that the purchase 
tax was "to be remitted by the sugar factories to the Govt [and was] being passed on to the cane 
suppliers".253 For the 2015-16 sugar season , the complainants rely on an entry contained  in the 
CACP publications  for both the 2018 -19 and 2019 -20 sugar seasons. This entry  merely states that 
sugar mills paid the "FRP  with incentives which differ from factory to factory".254 We understand 
that, in the complainants' view, the CACP publications demonst rate that the purchase tax remittance 
existed in Andhra Pradesh.255 In our view, however, the CACP publications alone do not suffice to 
demonstrate that any disbursements were actually made by the State Government to sugarcane 
producers.  
7.96.  Turning to Andhra P radesh's Budget Estimates, we consider it useful to begin by explaining 
how such Estimates should be read, based on what we have learned from the parties through  
responses to questions , as well as from Andhra Pradesh's own Budget Manual. First, we note tha t 
an amount budgeted for a particular financial year actually shows the payments made for the sugar 
season preceding that financial year.256 Furthermore, Andhra Pradesh's Budget Estimates contain 
three columns. Each annual publication of Budget Estimates fo r a forthcoming financial year  includes 
a column indicating the "Budget Estimate" (column 2) for the previous financial year, as well as a 
"Revised Estimate" for that previous financial year (column 3). While those two columns relate to, 
 
stated that it  would not object to the Panel finding it to be  a "non -exempt direct payment". (Guatemala's response 
to Panel question No. 50, paras. 12 -14) 
248 The complainants argue, alternatively , that the  alleged support should be included in India's AMS  to 
sugarcane  producers as administered prices providing market price support. (Brazil's first written submission, 
fn 360 to para. 254; Australia's first written submission, para. 194; Guatemala's first written subm ission, 
para. 184) 
249 India's first written submission, para. 43; response to Panel question No. 50.  
250 India's response to Panel question No. 74(b).  
251 To recall, the CACP is a body attached to the Ministry of Agriculture and Farmers' Welfare in India.  
252 CACP Price Policy for Sugarcane: 2018 -19 Sugar Season , (Exhibit JE -52), p. 57, Annex Table 2.2.  
253 CACP Price Policy for Sugarcane: 2018 -19 Sugar Season , (Exhibit JE -52), p. 57, Annex Table 2.2 . 
254 CACP Price Policy for Sugarcane: 2018 -19 Sugar Season , (Exhibit JE -52), p. 57, Annex Table 2.2; 
CACP Price Policy for Sugarcane: 2019-20 Sugar Seaso n, (Exhibit JE -53), p. 56, Annex Table 1.3.  
255 Complainants' responses to Panel question No. 74(b).  
256 See para. 7.82 above.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  and reconcile, the  previous financial year, a final column (column  4) indicates the "Budget Estimate" 
for the forthcoming  financial year. In addition to these "estimate" columns, most (but not all) of 
Andhra Pradesh's Budget Estimates include a column (column 1) that indica tes the "Accounts"257 for 
the financial year that occurred two years prior . All parties agree that this column reflects actual 
disbursements of funds .258 Thus, in light of the measure at issue and in the circumstances of this 
case, we consider it appropriate to focus our attention on the "Accounts" columns in the most 
recently available Budget Estimates in order to discern the amounts of budgetary outlays, if any, 
that Andhra Pradesh actually disbursed during the 2014 -15 and 2015 -16 sugar seasons.  
7.97.  We note that certain budget columns, for certain entries, in the relevant Budget Estimates do 
not contain an amount, but contain two dots . Australia and Guatemala submit that the meaning of 
these two dots  is "ambiguous" or "not immediately  clear".259 India, for its part, submits that where 
a budget column contains two dots, th is means  that no amounts have been disbursed towards the 
specific  entry.260 For Australia and Guatemala , India's response is insufficient, due to its choice of 
words , to demonstrate that no disbursements were actually made .261 We note that  Australia and 
Guatemala's assertions contradict those made by all complainants earlier in these proceedings. We 
recall that, until the second substantive meeting of the Panel, the compla inants themselves 
considered that budget columns containing two dots demonstrated that no amounts had actually 
been disbursed .262 Based  on the evidence on record and the parties' arguments, we interpret the 
Budget Estimates such that if a relevant budget column contains an amount, it indicates that that 
amount has been budgeted or disbursed, and, conversely, if it does not contain any amount (or 
contains two dots) it indicates that no amounts have been budgeted or disbursed. We apply this 
understanding  in our assessment of the relevant budget columns covering  the 2014-15 and 2015 -16 
sugar seasons.  
7.98.  With respect to  the 2014 -15 sugar season, an amount of INR 65.97 million was initially 
budgeted under the entry "Assistance to Co -operative Sugar Factories towards reimbursement of 
Purchase Tax incentives".263 The same amount appears in the corresponding "Revised Estimate"  
column .264 However, we note that the "Accounts" column for the 2015 -16 financial year, which 
corresponds to the budgetary outlays made during 2014 -15 sugar season, contains no amount.265 
This indicates that although an amount was initially budgeted, no such disbursement was actually 
made. With respect to the 2015 -16 sugar season, an amount of INR  65.97 million was initially 
budgeted u nder the entry "Assistance to Co -operative  Sugar Factories towards reimbursement of 
Purchase Tax incentives".266 The same amount appears in the "Revised Estimate"  column .267 
However, as was the case for the preceding  season, the "Accounts" column for the 201 6-17 financial 
year, which corresponds to the budgetary outlays made during 2015 -16 sugar season, contains no 
amount.268 This indicates that although an amount was initially budgeted, no such disbursement was 
actually made.   
7.99.  We therefore understand that no budgetary outlay was ever made with respect to the alleged 
Andhra Pradesh purchase tax remittance. We note the complainants' argument that India's assertion 
that the purchase tax remittance has been discontinued as of 2018  reveals the existence of that 
 
257 Pursuant to Andhra Pradesh's Budget Manual, "[a]ccounts or actuals of a year are the amounts of 
receipts and disbursements for the fina ncial year beginning on April 1st and ending on March 31st following, as 
finally recorded in the Accountant -General's books". (Andhra Pradesh Budget Manual, (Exhibit JE -170), 
Article  2.1(1) )   
258 Parties' responses to Panel question No. 74(a).  
259 Australia's  response to Panel question No. 74(b), para. 80; Guatemala's response to Panel question 
No. 74(b), para. 75 . 
260 India's response to Panel question No. 74(b); response to Guatemala's question No. 2 . 
261 Australia and Guatemala's comments on India's response to Panel question No. 74(b) . 
262 Specifically, in withdrawing their initial assertions regarding the 2016 -17 sugar season (see fn 244 to 
para. 7.91 above), the complainants considered, inter alia , the "Accounts" column for the corre sponding 2017 -18 
financial year (which also contains two dot s) to demonstrate that no amounts had actually been disbursed.  
(Complainants' responses to Panel question No. 28(d) (referring to Andhra Pradesh Budget Estimates for the 
2019-20 financial year, (Exhibit JE -146)) ) 
263 Andhra Pradesh Budget Estimates for the 2 015-16 financial year, (Exhibit JE-86), p. 18.  
264 Andhra Pradesh Budget Estimates for the 2016 -17 financial year, (Exhibit JE-134), p. 17.  
265 Andhra Pradesh Budget Estimates for the 2017 -18 financial year, ( Exhibit JE-135), p.  30. 
266 Andhra Pradesh Budget Estimates for the 2016 -17 financial year, (Exhibit JE-134), p. 17.  
267 Andhra Pradesh Budget Estimates for the 2017 -18 financial year , (Exhibit JE -135), p. 30.  
268 Andhra Pradesh Budget Estimates  for the 2018-19 financial year,  (Exhibit JE-85), p. 33.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  purchase tax remittance.269 However, we are not persuaded that India's statement as to when this 
scheme was discontinued necessarily demonstrates that disbursements were made under that 
scheme in the sugar seasons preceding the date of discontinuation . In our view, if the alleged 
purchase tax remittances were disbursed, they would be reflected in the relevant Andhra Pradesh 
Budget Estimates.  
7.100.   In light of the foregoing, we find that the complainants have failed to demonstrate that the 
State Government of Andhra Pradesh remitted purchase tax es in favour of, or to, sugarcane 
producers during the  2014-15 and 2015 -16 sugar seasons .270  Consequently, we do not include the 
alleged amounts in our calculation of India's AMS to sugarcane producers.  
7.1.3.3.4   Karnataka's incentive price payments  
7.101.   Brazil and Australia271 submit that the State Government of Karnataka provide s domestic 
support to sugarcane producers through "incentive price payment s". They assert that Karnataka  
budgeted an amount of INR  100,000 for this purpose during the 2017-18 sugar season .272 They also 
assert  that the funds provided by Karnataka to sugarcane producers  through these incentive price 
payments  were separate from  the FRP , and constituted  "non-exempt direct payments" within the 
meaning of paragraph 1 of Annex 3 of the Agreement on Agriculture.273 Moreover, Brazil and 
Australia submit that these payments were not made to maintain the price gap , within the meaning 
of paragraph 8 of Annex  3, because, inter alia , although they were made " through  Sugar Factories", 
as indicated in the Budget Estimates, they ultimately benefitted sugarcane producers, not sugar 
mills.274 Recalling that paragraph 7 of Annex 3 provides that measures "directed at agricu ltural 
processors shall be included " in the calculation of AMS  "to the extent that such measures benefit the 
producers of the basic agricultural products" , Brazil and Australia submit  that these incentive price 
payments  should be included in  the calculatio n of India's AMS to sugarcane producers.275 
7.102.   India has not contested Brazil and Australia's characterization of the alleged payments, nor 
has it argued that they are exempt , or otherwise excluded,  from the calculation of India's AMS under 
any provision of the Agreement on Agriculture. Regarding  the fact that the payments were made 
through sugar mills, India asserts that "[t]he complainants bear the burden to prove [the] necessary 
elements of  their claims."276 Moreover, India asserts that Brazil and Australia  failed "to produce any 
official notification/order in support of their contention on incentive payments over and above the 
FRP".277 In any event, India asserts, Karnataka "did not provide funds un der this programme."278 
7.103.   We begin our analysis by noting that, in seeking to substantiate their arguments regarding 
the existence and precise amounts of support to sugarcane farmers allegedly provided by Karnataka, 
Brazil and Australia mainly rely on an entr y in Karnataka's Budget Estimates for the 2019 -20 financial 
 
269 Complainants' responses to Panel question No. 74(b). 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 Novembe r 2018 ." (India's first written submission, para. 43 (referring to 
Notification from the Ministry of Finance of 14 November 2018 (Goods and Services Tax Compensation ), 
(Exhibit  IND-5))) 
270 For these reasons, we do not consider it necessary to address the co mplainants' alternative arguments 
with respect to Andhra Pradesh's alleged domestic support outlined in fn 248 to para. 7.91 above.  
271 As noted above, following the second substantive meeting of the Panel, G uatemala withdrew  its 
assertions regarding Karnataka's "incentive price payments" and omitted the alleged amounts  from its calculation 
of India's AMS  to sugarcane producers. (Guatemala's comments on India's response to Guatemala's question 
No. 3 ( referring to Exhibit GTM -45 (revised 12 May 2021)) . 
272 Brazil's first written submission, para. 163 and A ppendix  B-3; Australia's first written submission, 
paras. 195 -197 and Annex E -5 (referring to Karnataka Budget Estimates  for the 2019 -20 financial year, 
(Exhibit  JE-90, p. 44 )). 
273 Brazil's first written submission , para. 163 ; Australia's first written submission, para. 19 7. Both 
complainants submit that even if the alleged payments are to be characterized as "other non -exempt policies", 
they would still need to be included in the calculation of India's AMS to sugarcane producers (Brazil and Australia's 
responses to Panel question 27(b)) Australia argues, alternatively, that the  alleged  payment s are directed at 
maintaining the sugarcane price "gap" and requests the Panel to find that "it is a measure through which India 
is providing domestic support above de minimis ". (Australia's response to Panel question No.  27(a), para. 7 7) 
274 Brazil and Australia 's responses  to Panel question No. 27(b).  
275 Brazil and Australia's responses to Panel question No. 27(b).  
276 India's response to Panel question No. 27.  
277 India's comments on the complainants' responses to Panel question Nos. 75 -77, para. 10.  
278 India's comm ents on the complainants' responses to Panel question Nos. 75 -77, para. 10.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  year, i.e. the "Payment of Incentive Price for Sugar Cane through Sugar Factories. Subsidies".279  
Additionally, Brazil and Australia provide certain supporting arguments and evidence, which, we 
understand, do not , on their own, establish the existence or the amounts of the alleged payments. 
Rather, we understand that these arguments and evidence seek to demonstrate the purpose, as well 
as the legal characterization of the alleged payments, i.e. tha t they do not constitute payments 
made to maintain the price gap within the meaning of paragraph 8 of Annex 3280, and should be 
included in the calculation of India's AMS to sugarcane producers. Therefore, we consider it 
reasonable to first address the argu ments and evidence relating to the existence and amounts of 
the alleged payments, i.e. Karnataka's Budget Estimates. We then turn to address the supporting 
argument s and evidence.  
7.104.   With respect to Karnataka's Budget Estimates, we recall our discuss ion relating to  the 
interpretation of the Indian States' Budget documents in the context of  Andhra Pradesh's alleged 
support to sugarcane producers. In particular, we recall our discussion on the relevance of the 
"Accounts" column of the Budget Estimates with respect to any governmental expenditures.281 All 
parties agree that the "Accounts" column, as interpreted in Andhra Pradesh's Budget Estimates, is 
likely to have the same meaning in Karnataka's Budget Estimates.282 From the parties' responses, 
as well as our  own assessment of Karnataka's Budget Manual283, we understand that, indeed , actual 
expenditures related  to a certain budget entry during a particular sugar season will be reflected in 
the "Accounts" column for the corresponding financial year.  In this rega rd, we recall Brazil's 
argument that , "under India's budget approach, information on actual government expenditure may 
be available only two or three years after the initial budget estimate".284 Therefore, as was the case 
for Andhra Pradesh,  in light of the  measure at issue and in the circumstances of this case , we 
consider it appropriate  to focus our analysis  on the "Accounts" column in the most recently available 
Budget Estimates in order to discern the amounts of budgetary outlay s, if any, that Karnataka  
actually disbursed during the 2017-18 sugar season.   
7.105.   Regarding the 2017 -18 sugar season, Karnataka's Budget Estimates for the 2019 -20 
financial year indicate an  amount of 1 lakh (i.e. INR 100,000.00) under the columns "Budget 
2018-19" and "Revised 2018 -19", for the entry "Payment of Incentive Price for Sugar Cane through 
Sugar Factories . Subsidies ".285 We note that in  response to a  Panel  question, the complainants 
submitted a more recent  publication of Karnataka's Budget Estimates , for the 2020 -21 financial year,  
containing the  "Accounts" column for the 2018 -19 financial year (which should reveal actual 
government disbursements  for the 2017-18 sugar season, if any ).286 As pointed out b y Brazil and 
Australia , the entry  "Payment of Incentive Price for Sugar Cane through Sugar Factories. Subsidies"  
does not appear  in these newly -submitted Budget Estimates , indicating that no amounts were 
disbursed for this particular budget entry.287 Our understanding of the Budget Estimates reveals that  
the fact that the  State initially budgeted a certain amount in its Budget Estimates does not 
necessarily mean that  payments were actually made to sugarcane producers . Moreover, we 
 
279 Karnataka Budget Estimates  for the 2019 -20 financial year, (Exhibit JE -90), p. 44.  
280 In this respect, Brazil states that " the evidence substantiates that [the incentive price payments]  are 
non-exempt direct payments that should be calculated towards the AMS. " (Brazil's response to Panel question 
Nos. 76 -77, para s. 111 -112) Australia relies on this evidence "to support its assertion that the incentive price 
payments identi fied in Exhibit JE-90 constitute a form of non -exempt support that paragraph 1 of Annex 3 of the 
Agreement on Agriculture stipulates may be included in the calculation of India's AMS for sugarcane". (Australia's 
response to Panel question Nos. 76 -77, para.  96) See also fn 298 to para. 7.107  below.  
281 See para. 7.96 above.  
282 Parties' responses to Panel question No. 74(c).  
283 We note that the "[a]ccounts  or actuals of a year' are the amounts of receipts and disbursements for 
the year beginning on first April and ending on the last day of March following as finally recorded in the books of 
the Accountant General. " (Karnataka Budget Manual, (Exhibit JE -172), Article 32)  
284 Brazil's response to Panel question No. 28(d), para. 57.  
285 Karnataka Budget Estimates for the 2019 -20 financial year, (Exhibit JE -90), p. 44. We recall that any 
estimates, or expenditures made for the 2017 -18 sugar season, will be reflected under the 2018 -19 financial 
year. See also para. 7.82 above.  
286 Karnataka Budget Estimates for the 2020 -21 financial year, (Exhibit JE -173).  
287 We note that, in response to a question from Guatemala, India submits that the a bsence of the relevant 
entry in the Budget Estimates indicates that no amounts were disbursed by the State. (India's response to 
Guatemala's question No. 3) We also note that, based on India's explanation and the most recent Budget 
Estimates, Guatemala wit hdrew its arguments regarding Karnataka's alleged payments. (See fn 271 to 
para. 7.101  above)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  emphasize that the 2020 -21 Budget Estimates reveal that no such payments were, in fact, 
disbu rsed.288  
7.106.   At this juncture, we turn to also assess Brazil and Australia's supporting arguments  and 
evidence.289 We recall that in conducting our assessment of Tamil Nadu's direct payments290, we 
analysed , inter alia , Tamil Nadu's transition from the SAP to the revenue -sharing -based sugarcane 
price. That analysis  revealed important information relating to the disbursement of  direct payments 
to sugarcane producers, which ultimately, along with other exhibits on the rec ord, demonstrated 
that such payments were made. We observe that , similar ly to Tamil Nadu, Karnataka is among the 
States that have transitioned (or are transitioning) from the SAP to a system of 
revenue -sharing -based sugarcane prices. The revenue -sharing sy stem was introduced through the 
Karnataka Sugarcane (Regulation of Purchase and Supply) Act291, subsequently amended by the 
Karnataka Sugarcane (Regulation of Purchase and Supply) Amendment Act in 2014.292 Pursuant to 
the Karnataka Sugarcane Amendment Act, the payment of the sugarcane price is divided into two 
stages. First, sugarcane producers receive the Central Government's FRP. Second, they receive an 
"additional sugarcane price".293 The additional sugarcane price is def ined as the price "to be paid by 
the occupier of the factory to the sugarcane grower for the sugarcane delivered over and above 
[the] Fair and Remunerative Price".294 
7.107.   We understand that, in the view of Brazil and Australia, the amounts budgeted for the 
incentive price payments, as identified in Karnataka's Budget Estimates for the 2019 -20 financial 
year, may be connected to the system of revenue -sharing -based sugarcane prices, or, more 
specifically, to the "additional sugarcane price".295 We observe, however,  that nothing in the 
evidence demonstrates that the initially estimated amounts for the incentive price payments were 
budgeted for the purpose of supporting sugar mills in paying the "additional sugarcane price" under 
the second stage of the revenue -sharin g system. Furthermore, nothing in the Budget Estimates or 
any other evidence on the record indicates any relationship between the alleged incentive price 
payments and Karnataka's transition from the SAP to the system of revenue -sharing -based 
sugarcane pric es. In comparison, in the case of Tamil Nadu296, relevant State Orders clearly 
demonstrate the purpose and operation of the transitional production incentives. Moreover, with 
respect to Tamil Nadu, all other supporting evidence explicitly refers to the "tra nsitional production 
incentives", while providing additional information that led us to conclude that those payments were 
indeed made, and for that particular purpose.297 In any event, and particularly in light of Karnataka's 
Budget Estimates as described in paragraphs 7.104 -7.105, we do not see how the existence of the 
 
288 We note Brazil and Australia's agreement that, where different publications of the same type of 
document contain contradictory factual information, the most recently published one is likely to be more accurate 
and up -to-date than older publications. (Brazil and Australia's responses to Panel question No. 64)  
289 See para. 7.103  above.  
290 See section 7.1.3.3.2  above.  
291 Karnataka Sugarcane Act, (Exhibit AUS-52), Section 4(f).  
292 Karnataka Sugarcane Amendment Act, (Exhibit GTM -28). 
293 Karnataka Sugarcane Amendment Act, (Exhibit GTM -28), pp. 4 -5, Section 8, amending Sections 9(1) 
and 9(1A) of the Karnataka Sugarcane Act.  
294 Karnataka Sugarcane Amendment Act, (Exhibit GTM -28), p. 2 , Section 2, amending S ection 2 of the 
Karnataka  Sugarcane  Act. See also Cane Commissioner's Annual Report , 2017 -18, (Exhibit JE -139), para. 8.  
295 Brazil states that Karnataka's payments to farmers were made to ensure  "higher -than-FRP revenues " 
under the revenue -sharing system. ( Brazil's response to Panel question No. 27(c), para. 50 ) Australia compares 
Karnataka's  payments to the "transitional production incentives" in Tamil Nadu and suggests that they may also 
have bee n made to assist sugarcane farmers with the transition from the SAP to the revenue -sharing system . 
(Australia's response to Panel question No. 27(a), para. 74) Australia also submits, alternatively, that Karnataka's 
payments  supported sugar mills in paying  the "additional sugarcane price" under the revenue -sharing system . 
(Ibid. para.  75) 
296 See section 7.1.3.3.2  above.  
297 We note Brazil and Australia's arguments that there is limited evidence regarding the exact operation 
of the incentive price payments. (Brazil's response to Panel question No. 75, paras. 106 -108; Australia's response 
to Panel question No 75, paras. 88 -89) The complainants add that India  "has refused to assist the Panel with 
information in its exclusive possession", or that " India has not helped improve Australia's understanding of the 
Karnataka Scheme".  (Ibid.)  India, on the other hand, argues that "if the complainants consider any document 
as evidence, it is the complainants' burden to explain those documents". (India's comments on the complainants' 
responses to Panel question Nos. 75 -77) WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  revenue -sharing system or the "additional sugarcane price" supports a finding that incentive price 
payments were actually made during the 2017 -18 su gar season.298 
7.108.   As a result , we find that Brazil and Australia have failed to demonstrate that the State of 
Karnataka provided incentive price payments to sugarcane producers during the  2017-18 sugar 
season.299 Consequently, we do not include the alleged amou nt in our  calculation of India's AMS to 
sugarcane producers.  
7.1.3.3.5   Amount of non-exempt direct payments or other non -exempt policies to 
sugarcane producers  
7.109.   For the foregoing reasons, we find that India provided non -exempt direct payments to 
sugarcane producers d uring the 2017 -18 and 2018 -19 sugar seasons, and we include these amounts 
in our calculation of India's AMS to sugarcane producers, as follows300: 
Sugar season  Non-exempt direct payments or other non -exempt policies  
(INR million)  
2014-15 n/a 
2015-16 n/a 
2016-17 n/a 
2017-18 1,364.3 0 
2018-19 980.3 0 
 
7.1.3.4   Overall calculation  
7.110.   We recall that the calculation of a Member's product -specific AMS should take into account 
market price support, non -exempt direct payments, and other non -exempt policies. Based on our 
findings above, we therefore find that India's AMS to sugarcane producers was as follows301:  
Sugar 
season  Market price support  
(INR million)  Non-exempt direct 
payments and other 
non-exempt policies  
(INR million)  AMS to sugarcane 
producers  
(INR million)  
2014-15 903,750.80  n/a 903,750.80  
2015-16 880,418.99  n/a 880,418.99  
2016-17 815,045.69  n/a 815,045.69  
2017-18 1,072,685.61  1,364.3 0 1,074,049.91  
2018-19 1,110,085.53  980.3 0 1,111,065.83  
 
7.1.4   Comparison and conclusion  
7.111.   We recall that the assessment of India's compliance with Article 7.2(b) of the Agreement on 
Agriculture entails comparing India's actual AMS to sugarcane producers with the level of 
product -specific domestic support that India is permitted to provide. As explained a bove, we consider 
it relevant and appropriate to make this comparison for five recent sugar seasons, from 2014 -15 to 
2018-19.302 We summarize this comparison as follows303: 
 
298 As noted in para. 7.103  above, Brazil and Australia submitted further supporting arguments and 
evidence, seeking to demonstrate the legal characterization of the alleged payments.  (Brazil's response to Panel 
question Nos. 27(a), fn 103 to para. 46, and 27(c), fn 110, to para. 50; Australia's response to Panel question 
No. 27(a), fn 112 to para. 73 (referring to Cane Commissioner's Annual Report,  2017-18, (Exhibit JE -139), note 
to para.  5; and CACP Price Policy for Sugarcane: 2019 -20 Sugar Season, (Exhibit JE -53), p. 56, Annex Table  1.3) 
Having found that no such payments were made to sugarcane producers in the 2017 -18 sugar season, we do 
not consider it necessary to further  address those arguments and evidence.     
299 Therefore, we do not consider it necessary to address Australia's alternative arguments regarding 
Karnataka's alleged domestic support to sugarcane producers, outlined in fn 273 to para. 7.101  above.  
300 See para. 7.90 above.  
301 See paras. 7.67 and 7.109  above.  
302 See para. 7.11 above.  
303 See paras. 7.17 and 7.110  above.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Sugar season  Actual AMS to sugarcane 
producers (INR million)  Permitted level  of product -
specific support  
(INR million)  
2014-15 903,750.80  96,529.00 
2015-16 880,418.99  95,864.00 
2016-17 815,045.69  94,698.00 
2017-18 1,074,049.91  117,351.00 
2018-19 1,111,065.83  123,049.00 
 
7.112.   In view of the fact that, for five consecutive sugar seasons, from 2014 -15 to 2018 -19, India 
provided non -exempt domestic support to sugarcane producers in excess of the permitted level of 
10% of the total value of sugarcane production, we conclude that India is acting inconsistently with 
Article  7.2(b) of t he Agreement on Agriculture.  
7.2  Export subsidies  
7.2.1   Introduction  
7.113.   The complainants challenge certain of India's federal -level measures pertaining to sugar or 
sugarcane, which are implemented through a number of legal instruments.304 The complainants 
argue that the  measures at issue are  export subsidies inconsistent with India's obligations under the 
Agreement on Agriculture and the SCM Agreement.   
7.114.   As an initial point, we wish to address certain differences in the way the complainants frame 
the measures at issue and  their requests for findings.  
7.115.   Brazil requests that the Panel make separate findings with respect to the following 
"measures"305: (i) S cheme for assistance to sugar mills for the 2018 -19 sugar season ; (ii) S cheme 
for creation and maintenance of buffer stock in 2018 ; (iii) S cheme for creation and maintenance of 
buffer stock in 2019 ; (iv) S cheme for assistance to sugar mills for the 2017 -18 sugar season ; 
(v) Scheme for extending production subsidy to sugar mills for the 2015 -16 sugar season ; and 
(vi) the Marketing and Transportation Scheme.306 Brazil underscores that the first five of these 
schemes operate together with the Minimum Indicative Export Quotas (MIEQs), whereas the 
Marketing and Transportation Scheme operates together with the Maximum A dmissible Export 
Quantity (MAEQ).307 Brazil claims that these schemes constitute export subsidies within the meaning 
of Article 9.1(a) of the Agreement on Agriculture and are inconsistent with  India's obligations under  
Article s 3.3 and 8 of th at Agreement.308 
7.116.   Australia submits that India provides export subsidies through the following subsidy 
schemes: (i) the Production Assistance Scheme, operating in conjunction with the MIEQs; (ii) the 
Buffer Stock Scheme, operating in conjunction with the MIEQs; (iii) the Marketing and Transportation 
Scheme, operating in conjunction with the MAEQ; and (iv) the Duty Free Import Authorization (DFIA) 
Scheme  for sugar .309 Australia requests that the Panel find that these schemes constitute export 
subsidies within the meaning of Article 9.1(a) of the Agreement on Agriculture and are inconsistent 
with India's obligations under Articles 3.3 and 8 (or, in the alternative, Articles 8 and 10 .1) of the 
Agreement on Agriculture, and with Articles 3.1(a) and 3.2 of the SCM Agreement.310 
7.117.   Guatemala maintains that India provides export subsidies through: (i)  the Production 
Assistance Scheme, operating in conjunction with the MIEQs; (ii) the Buffer Stock Scheme, operating 
 
304 Brazil's panel request, para. 14; Australia's panel request, para. 19 and para. 9 of Annex A thereto; 
Guatemala's panel request, para. 9 and para. 9 of the Annex thereto.  
305 Brazil's second written submission, para. 82. See also ibid. para . 89. 
306 Brazil's second written submission, paras. 82 -83; response to Panel question  No. 79.  
307 Brazil's first written submission, paras. 177 -179. As explained in section 7.2.2.1  below, the MIEQ 
orders allocate to sugar mills minimum sugar export quotas, whereas the MAEQ allocates maximum sugar export 
quotas, on a per -mill basis. The com plainants do not challenge the MIEQs and the MAEQ as such. 
(See para. 7.122  below)  
308 Brazil's first written submission, para. 233.   
309 Australia's first written submission, para. 223.  
310 Australia's first written submission, para. 468.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  in conjunction with the MIEQs 311; and (iii) the Marketing and Transportat ion Scheme, operating in 
conjunction with the MAEQ.312 Guatemala claims that these schemes constitute export subsidies 
within the meaning of Articles 9.1(a) and 9.1(c) of the Agreement on Agriculture and are inconsistent 
with India's obligations under  Articles 3.3 , 8, and 9.1  of that Agreement , as well as with Article  3.1(a) 
of the SCM Agreement.313  
7.118.   We note that, unlike Australia and Guatemala, Brazil identifies as "measures", and requests 
separate findings of WTO -inconsistency regarding, what appear to be a nnual iterations of certain 
schemes.314 We recall, in this regard, our findings in  our preliminary ruling in Annex E -1 that the 
complainants' panel requests, including that of Brazil, define the measures at issue as federal -level 
export subsidies pertaining to sugar or sugarcane.315 We understand that such federal -level export 
subsidies include, inter alia , the Production Assistance Scheme, the Buffer Stock Scheme, and the 
Marketing and Transportation Scheme. These schemes are implemented on a seasonal basis through 
a number of legal instruments. In particular, the complainants submitted evidence with respect to 
the Product ion Assistance Scheme for the 2015 -16316, 2017 -18317, and 2018 -19 sugar seasons.318 
Similarly, the complainants provided evidence with respect to the Buffer Stock Scheme for the 
2018-19 ("Buffer Stock Scheme 2018")319 and 2019 -20 ("Buffer Stock Scheme 2019")320 sugar 
seasons. Brazil's panel request also identifies some of these pieces of evidence as legal instruments 
that implement the measures at issue.321  
7.119.   In this connection, we recall our understanding of the difference between measures and legal 
instruments, set out in our preliminary ruling in Annex E -1. As explained there, the measures at 
issue as set out in the panel request, together with a summary of the legal basis of the  complaint, 
define a panel's terms of reference. By contrast, legal instruments usua lly constitute evidence of the 
existence and operation of a particular measure.322 A panel has to make findings regarding the 
WTO-consistency of the measures at issue, which may not necessarily be coterminous with the legal 
instruments that implement such m easures.  
7.120.   In line with the approach suggested by Australia and Guatemala, and in accordance with 
Brazil's identification of the measures at issue in its panel request, we consider it appropriate to 
make findings on the WTO -consistency of the subsidy scheme s that form part of India's  alleged 
federal -level subsidies contingent on export performance, namely, the Production Assistance 
Scheme, the Buffer Stock Scheme, and the Marketing and Transportation Scheme. As part of our 
assessment of the WTO -consistency o f these schemes, we will determine their design and operation 
by examining the legal instruments that implement them in different sugar seasons. After assessing 
the claims brought by all complainants with respect to these three schemes, we will examine the  
WTO-consistency of the DFIA Scheme  for sugar , which is challenged by Australia only.  
 
311 In response to a question from the Panel, Guatemala clarified that it does not consider the Buffer Stoc k 
Scheme 2018 and the Buffer Stock Scheme 2019 to be stand -alone measures. Rather, in Guatemala's view, they 
are part of the legal instruments that implement India's federal -level export subsidies. Guatemala explained that, 
given the proximity of these two  Schemes, it would not object to the Panel making findings with respect to the 
Buffer Stock Schemes collectively.  (Guatemala's response to Panel question  No. 80, paras. 84 -89) 
312 Guatemala's first written submission, paras. 192, 200, 240; second written sub mission, para. 54.  
313 In the alternative, Guatemala submits that the schemes at issue are domestic support measures that 
directly or indirectly benefit sugarcane growers and, as such, should be included in the calculation of India's AMS 
to suga rcane produce rs. (Guatemala's first written submission, para. 195)  
314 In its first written submission, Brazil itself draws a distinction between the schemes that existed at the 
time of the establishment of the Panel and the expired schemes. (Brazil's first written submi ssion, Sections IV.C.1 
and IV.C.2)  
315 See Annex E -1. 
316 Notification of 2 December 2015, (Exhibit  JE-76). 
317 Notification of 9 May 2018, (Exhibit  JE-75). 
318 Notification of 5 October 2018, (Exhibit  JE-74).  
319 Notification of 15 June 2018, (Exhibit  JE-78), par a. 1. 
320 Notification of 31 July 2019, (Exhibit  JE-77), preamble.  
321 See Brazil's panel request, para. 14. Brazil's panel request does not refer to the Buffer Stock 
Scheme  2019. However, since we consider the Buffer Stock Scheme 2019 to be a legal instrument and not a 
measure at issue, we do not find the absence of a reference to it in Brazil's panel request problematic.  
322 See Annex E -1.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.2.2   Measures at issue  
7.121.   As noted, the complainants challenge India's federal -level measures pertaining to sugar or 
sugarcane.323 In particular, all complainants take issue with three alleged assistance schemes: 
(i) the Production Assistance Scheme, which operates jointly with the MIEQs; (ii) the Buffer Stock 
Scheme, which operates jointly with the MIEQs; and (iii) the Marketing and Transportation Scheme, 
which operates jointly wi th the MAEQ. In addition, Australia challenges the DFIA Scheme , which is 
not linked to the MIEQs or the MAEQ . 
7.122.   The complainants explain that the MIEQs and the MAEQ alone do not provide subsidies 
contingent on export performance.324 Rather, the complainants take issue with "India's recurring 
policy of tying MIEQ and MAEQ export quotas to various direct payment schemes, in a manner that 
causes those payments to be export subsidies".325 Accordingly, the complainants consider that the 
combined operation of the Production Assistance Scheme, Buffer Stock Scheme, and Marketing and 
Transportation Scheme with the MIEQs and the MAEQ constitute s subsidies contingent on export 
performance.326 
7.123.   This section provides an overview of the MIEQs and the MAEQ, as well as the alleged export 
subsidy schemes challenged by the complainants.327 
7.2.2.1   MIEQs and MAEQ  
7.124.   We recall that "MIEQs" stand for "Minimum Indicative Export Quotas" and that "MAEQ" 
stands for "Maxi mum Admissible Export Quantity". The MIEQs and the MAEQ are adopted through 
orders issued by the Department of Food and Public Distribution  (DFPD),  which is part of the Ministry 
of Consumer Affairs, Food and Public Distribution .328 The MIEQ orders allocate to sugar mills 
minimum sugar export quotas, whereas the MAEQ allocates maximum sugar export quotas, on a 
per-mill basis.  
7.125.   The legal basis for the MIEQ and MAEQ orders is found in the Essential Commodities Act  1955 
and the Sugar (Control) Order  1966.329 Specifically, Section 3 of the Essential Commodities Act 
authorizes the Central Government to issue orders for the control of the production, supply and 
distribution  of certain commodities.330 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 and  distribution of any 
kind of sugar.331 Clause 14 of the Sugar (Control) Order provides that compliance with the orders 
issued pursuant to the Sugar (Control) Order is mandatory.332  
 
323 Brazil's panel request, para. 14;  Australia's panel request, para. 19 and para. 9 of Annex A thereto; 
Guatemala's panel request, para. 9 and para. 9 of the Annex thereto.  
324 Australia's first written submission, para. 219; Guatemala's first written submission, para. 207.  
325 Australia's firs t written submission, para. 219. See also Brazil's first written submission, paras. 172 
and 177.  
326 Australia's first written submission, paras. 220 -221; Guatemala's first written submission, para. 207.  
327 India stated that it agrees with the complainants' f actual descriptions of the measures at issue to the 
extent they reflect the text of the relevant instruments. (India's response to Panel question  No. 29)  
328 Australia's first written submission, para. 225; Guatemala's first written submission, para. 202; In dia's 
response to Panel question  No. 31.  
329 Brazil's first written submission, para. 202; Australia's first written submission, paras. 224 -225; 
Guatemala's first written submission, paras. 202 -203 (referring to Clause 5 of the Sugar (Control) Order, 1966, 
(Exhibit  JE-44)); and India's response to Panel question  No. 31.  
330 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 deal er 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  JE-43, Section (3E))  
331 Sugar (Control) Order, 1966, (Exhibit  JE-44), Clause 5, p. 42.  
332 Sugar (Control) Order,  1966,  (Exhibit  JE-44), Clause 14, pp. 47 -48. Moreover, Section 7 of the 
Essential Commodities  Act provides for fines or imprisonment for violations of the orders issued under the 
authority granted pursuant to its Section (3E). (Exhibit  JE-43, Section 7)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.126.   The MIEQs are determined "[i]n view of the inventory levels within the sugar industry and 
to facilitate achieveme nt of financial liquidity" .333 The MIEQs  allocate  a total  minimum  quantity of 
sugar that must be  exported and distribute that quantity among individual sugar mills operating in 
India (mill -wise allocations).334 
7.127.   The MIEQs are issued on a seasonal basis. The c omplainants submit evidence on the MIEQs 
for the 2015 -16335, 2017 -18336, and 2018 -19337 sugar seasons.  The total amount of the MIEQ for all 
sugar mills was 4 million tonnes of sugar for the 2015 -16 season338; 2 million  tonnes  for the 2017-18 
season339; and 5 million  tonnes  for the 2018 -19 season.340 To demonstrate compliance with their 
individual MIEQ allocations, sugar mills are required to provide the DFPD with supporting documents, 
such as shipping bills and agreements between the sugar mill and the exporter .341 
7.128.   As explained below, the Production Assistance and Buffer Stock Schemes are linked to the 
MIEQ orders. Specifically , compliance with the MIEQ orders is an e ligibility criterion for receiving 
assistance under all seasonal iterations of the Production Ass istance Scheme and the Buffer Stock 
Scheme 2018.342 
7.129.   In the 2019 -20 sugar season, India introduced  the MAEQ, which  imposes the maximum 
admissible export quantity of sugar at 6 million ton nes.343 Like the MIEQs, the MAEQ was adopted 
through a DFPD order.  The MAEQ order contains  an Annex that lists the amount of MAEQ allocated 
to each sugar mill in India.344 The MAEQ order is linked to the Marketing and Transportation Scheme 
such that to become elig ible to receive assistance under that Scheme, a sugar mill is required to 
export at least 50% of its MAEQ allocation.345 
7.2.2.2   Production Assistance Scheme  
7.130.   Under the Production Assistance Scheme,  the government provides assistance  to sugar mills  
on a seasonal bas is. The assistance is  provided through notifications issued by the DFPD. The 
complainants submitted evidence with respect to  the Production Assistance Scheme  for the 
2015-16346, 2017 -18,347 and 2018 -19 sugar seasons.348 
7.131.   The purpose of the Production Assistanc e Scheme is "to offset the cost of cane and facilitate 
timely payment of cane price dues of farmers" for the relevant sugar season.349 The assistance thus 
has to be used for the payment of cane price dues of farmers related to the FRP.350 Mills are required 
to submit a utilization certificate to demonstrate that the assistance has been used for this 
 
333 MIEQ Order of 28 March 2018, (Exhibit  JE-107), preamble; MIEQ Order of 28 September 2018, 
(Exhibit JE-108), preamble; and MIEQ Order of 18 September 2015, (Exhibit  JE-109), preamble.  
334 The mill -wise allocations are contained in an annex to each MIEQ Order. (See Exhibits JE-108, JE-109, 
and JE -111) 
335 MIEQ Order of 18 September 2015 , (Exhibit  JE-109). 
336 MIEQ Order of 28 March 2018 , (Exhibit  JE-107).  
337 MIEQ Order of 28 September 2018, (Exhibit  JE-108). 
338 MIEQ Order of 18 September 2015 , (Exhibit  JE-109), para. 1. 
339 MIEQ Order  of 28 March 2018, (Exhibit  JE-107),  para. 1; Notification of 9 May 2018 , (Exhibit  JE-111), 
para. 2.  
340 MIEQ Order of 28 September 2018, (Exhibit  JE-108), para. 1.  
341 MIEQ Order of 28 September 2018, (Exhibit  JE-108), para. 4. See also MIEQ Order of 28 March 2018, 
(Exhibit  JE-107), para. 3 and MIEQ Order of 18 September 2015, (Ex hibit JE-109), para. 3.  
342 See paras. 7.133  and 7.138  below.  
343 Cabinet Committee on Economic Affairs Announcement of Sugar export policy for evacuation of surplus 
stocks during sugar season 2019 -20, (Exhibit  JE-113).  
344 MAEQ Order of 16 September  2019, ( Exhibit  JE-115), Annexure.  
345 Notification of 12 September 2019, ( Exhibit  JE-114), para. 2(a). See also  MAEQ Order of 
16 September  2019, (Exhibit  JE-115).  
346 Notification of 2 December 2015, ( Exhibit  JE-76). 
347 Notification of 9 May 2018, ( Exhibit  JE-75). 
348 Notification of 5 October 2018, ( Exhibit  JE-74).  
349 Notification of 2 December 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.  
350 Notification of 2 December 2015, ( Exhibit  JE-76), p aras. 1 and 2.v ; Notification of 9 May 2018, 
(Exhibit  JE-75), p aras. 1 and 3(iii) ; and Notification of 5 October 2018, ( Exhibit  JE-74), p aras. 1 and 3(iii) . WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  purpose.351 The assistance is paid directly to farmers on behalf of sugar mills.352 To this end, s ugar 
mills are required to open separate no -lien bank accounts to which farmers have access and into 
which the DFPD deposits the monies .353 Any remaining balance is credited to the account of the 
sugar mill itself.354  
7.132.   The amount of assistance is calculated  either based on the actual  volume of  sugar cane the 
mills crushed in the relevant sugar season  or based on their average sugar production over the 
previous three sugar seasons, whichever is lower .355 The rate of the production subsidy was INR 4.50 
per quinta l of sugar cane crushed  in the 2015 -16 sugar season356, INR 5.5 0 per quintal  of sugarcane 
crushed in the 2017 -18 sugar season357, and INR 13.88 per quintal  of sugarcane crushed in the 
2018-19 sugar season.358 
7.133.   With respect to the eligibility for the subsidy, th e Notifications for the 2017 -18 and 2018 -19 
sugar seasons stipulate that "[t]he mill should have fully complied with all the orders/directives of 
[the DFPD] to the sugar mills" for the relevant sugar season.359 Similarly, the Notification for the 
2015-16 su gar season states that mills that have achieved at least 80% of their MIEQ target shall 
be eligible for the production subsidy.360 
7.2.2.3   Buffer Stock Scheme  
7.134.   Under the Buffer Stock Scheme , sugar mills receive a subsidy for the quantity of buffer stock 
maintained. In support of their assertions regarding this scheme, the complainants provide the 
Notifications implementing the Buffer Stock Scheme for the 2018 -19 and 2019 -20 sugar seasons.361 
7.135.   The Buffer Stock Scheme was introduced "with a view to improve liquidity of the sugar 
industry; enabling them to clear cane price arrears of farmers and to stabilize [the] domestic sugar 
price".362 Similarly, with respect to the purpose of the assistance, the Buffer Stock Scheme states  
that "[t] he funds to be provided to the sugar mills as reimbursement of the carrying cost towards 
maintenance of the buffer stock are to be used firstly for payment of cane price dues of farmers for 
the current sugar season … [and] for arrears of previous sugar seasons. "363 
7.136.   The Buffer Stock Scheme 2019 provides for sugar mills storing a buffer stock of 4 million 
tonnes of sugar, which is divided into mill -wise allocations.364 Every  sugar  mill "shall set apart the 
quantity allocated as buffer stock and store it in separate and distinctly identifiable lots and stock 
 
351 Notification of 2 D ecember 2015, ( Exhibit  JE-76), p ara. 3 ; Notification of 9 May 2018, ( Exhibit  JE-75), 
para. 4 ; and Notification of 5 October 2018, ( Exhibit  JE-74), para. 4 . 
352 Notification of 2 December 2015, ( Exhibit  JE-76), para. 2.ii ; Notification of 9 May 2018, ( Exhibit  JE-75), 
para. 3(iv); Notification of 5 October 2018, ( Exhibit  JE-74), para. 3(iv).  
353 Notification of 2 December 2015, ( Exhibit  JE-76), para. 2.v ; Notification of 5 October 2018 , 
(Exhibit  JE-74), para. 3(v); and Notification of  9 May 2018 , (Exhibit  JE-75), para. 3(iv).  
354 Notification of 2 December 2015, ( Exhibit  JE-76), para s. 2.ii and 2.vi; Notification of 9 May 2018, 
(Exhibit  JE-75), p ara. 3(iv); and Notification of 5 October 2018, ( Exhibit  JE-74), para. 3(iv).  
355 Notification of 2 December 2015, ( Exhibit  JE-76), para. 2.i; Notification of 9 May 2018, ( Exhibit  JE-75), 
para. 3(ii); and Notification of 5 October 2018, ( Exhibit  JE-74), para. 3(ii). 
356 Notification of 2 December 2015, ( Exhibit  JE-76), para. 2.i.  
357 Notification of 9 May 2018, ( Exhibit  JE-75), p ara. 3(i).  
358 Notification of 5 October 2018, ( Exhibit  JE-74), para. 3(i). 
359 Notification of 9 May 2018, ( Exhibit  JE-75), p ara. 2(c) ; and Notification of 5 October 2018, 
(Exhibit  JE-74), p ara. 2(c) . 
360 Notification of 2 December 2015, ( Exhibit  JE-76), p. 1, para. 2.ii i.  
361 Notification of 15 June 2018, ( Exhibit  JE-78); and Notification of 31 July 2019, (Exhibit  JE-77). The 
Buffer Stock Scheme 2019 replicates the provisions of the Buffer Stock Scheme 2018 to a great extent.  
362 Notification of 31 July 2019, (Exhibit  JE-77), preamble; and Notification of 15 June 2018, 
(Exhibit  JE-78), p.1, preamble.  
363 Notification of 31 July 2019, (Exhibit  JE-77), para. 1; and Notification of 15 June 2018, ( Exhibit  JE-78), 
para. 1.  
364 Notification of 31 July 2019, (Exhibit  JE-77), preamble; and Order of 26 July 2019, (Exhibit  JE 127). 
Likewise, t he Buffer Stock Scheme 2018  provided for sugar mills storing an overall quantity of 3  million tonnes 
of sugar, which was divided into mill -wise allocations . (Notification of 15  June 2018, ( Exhibit  JE-78), p reamble; 
Order of 29 June 2018, ( Exhibit  JE-123)) WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  within the mill premises ".365 A mill may opt for a partial quantity of the offered quota, but it would 
not be  allowed to increase  its quota subsequently.366 
7.137.   The extent of assistance is determined based on the value of the buffer stock held. The rate 
for determining the value of stock was INR 29 and INR 31 per kg of sugar under Buffer Stock Scheme 
2018 and Buffer Stock Scheme 2019, respectively.367 
7.138.   To be eligible  for assistance , a sugar mill must have: (i) maintained the allocated buffer 
stock for the entire period (in full or in part, unless permitted to dismantle it); (ii) submitted the 
utilization certificates in respect of buffer stock subsid ies disbursed for earlier quarters; (iii) filed 
timely monthly statutory return s relating to data on sugar cane crushing, sugar production, stocks , 
etc.; and (iv) fully complied with the DFPD's orders/directives issued in the 2017-18 and 2018 -19 
sugar seasons  regarding the minimum selling price for sugar and maintaining minimum stocks of 
sugar after sale s of the maximum specified quantity for the month of June 2018 , as well as  similar 
orders to be issued in subsequent period s.368 In addition to these requirements, the Buffer S tock 
Scheme 2018 requir es sugar mills "to fully comply with all orders/directives issued by [DFPD] for 
compliance during 2018 -19 sugar season".369 
7.139.   With respect to the allocation of buffer stock subsidies, the Buffer Stock Scheme 2019 
provides:  
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 vi[a] directive dated 28.09.2018 of DFP D, its stock sh all 
be considered after deducting the quantity equivalent to its allocated MIEQ.370 
7.2.2.4   Marketing and Transportation Scheme  
7.140.   On 12 September 2019, India introduced the Marketing and Transportation Scheme. With 
respect to the purpose of the assistance, the Marke ting and Transportation Scheme states that "[t]he 
funds to be provided as assistance to facilitate export [are] to be used for payment of cane price 
dues of farmers for the sugar season 2019 -20 and cane price arrears of previous sugar seasons, if 
any."371  
7.141.   Under the Marketing and Transportation Scheme,  the Central Government provide s a "lump 
sum assistance for expenses on export of sugar limited to MAEQ of sugar mills for the sugar season 
2019-20, in the following manner ": (i) for "marketing including handl ing, quality up -gradation, 
debagging [and] re -bagging and other processing costs etc.", an amount of INR 4400 per tonne; (ii) 
for "internal transport and freight charges including loading, unloading, and fobbing etc.", an amount 
of INR 3428 per tonne; and (iii) for "ocean freight against shipment from Indian ports to the ports 
of destination countries etc.", an amount of INR 2620 per tonne  of sugar .372 
7.142.   The Marketing and Transportation Scheme further provides that  "the assistance ... would 
not be reimbursemen t but assistance" for the expenses incurred under the above -mentioned 
 
365 Notification of 31 July 2019, (Exhibit  JE-77), para. 2; and Notification of 15 June 2018, ( Exhibit  JE-78), 
para. 2.  
366 Notification of 31 July 2019, (Exhib it JE-77), para. 2; and Notification of 15 June 2018, ( Exhibit  JE-78), 
para. 2.  
367 Notification of 31 July 2019, (Exhibit  JE-77), para. 3(d); and Notification of 15 June 2018, 
(Exhibit  JE-78), para. 3(d). 
368 Notification of 31 July 2019, ( Exhibit  JE-77), para.  2. See also Notification of 15 June 2018, 
(Exhibit  JE-78), para. 4.  
369 Notification of 31 December 2018, ( Exhibit  JE-112), p. 1.  
370 Notification of 31 July 2019, ( Exhibit  JE-77), para. 2.  
371 Notification of 12 September 2019, ( Exhibit  JE-114), para. 1. Similarly, the preamble to the Marketing 
and Transportation Scheme states that the assistance is provided "with a view to facilitate[ing]  export of sugar 
during the sugar season 2019 -20 … thereby improving the liquidity position of sugar mi lls enabling them to clear 
cane price dues of farmers for sugar season 2019 -20". Paragraph 5 also states that "[t]he 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 
sugar se asons, if any." (Ibid. preamble, para. 5)  
372 Notification of 12 September 2019, ( Exhibit  JE-114), para. 3(i).  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  categories.373 Sugar mills are not entitled to claim assistance on any other expenses, or beyond the 
prescribed rate.374 
7.143.   To ensure that the assistance is directly credited into the account s of farmers, sugar mills 
must open separate no -lien accounts and furnish to the bank the details and extent of the sugarcane 
price dues for the 2019 -20 and previous sugar seasons.  The bank shall credit the amounts of 
assistance directly into the accounts of farmers "on behalf of mills against cane dues payable  and 
subsequent balance, if any, shall be credited into mill's account ".375 Sugar mills must submit 
utilization certificates confirming that the subsidy was used for the payment of farmers' sugarcane 
price dues within three months from the date of the payment of the subsidy .376 
7.144.   Eligibility to claim assistance  is conditioned, inter alia , upon mills exporting at least 50% of 
their MAEQ allocations. Specifically, the Marketing and Transportation Scheme  provides:  
The Sugar mills should have exported sugar up to the extent of their Maximum 
Admissible Export Quantity (MAEQ) determined by the Central Government for such 
mills for the sugar season 2019 -20, either themselves or through a merchant exporter. 
However, to become eligible to get assistance a sugar mill would be required to export 
at least 50% of its MAEQ.377 
7.145.   On 16 September 2019, the D FPD determined  the MAEQ for each sugar mill.378 
7.2.2.5   Duty Free Import Authorization (DFIA) Scheme  
7.146.   The DFIA Scheme is set out in the Foreign Trade Policy 2015 -2020 issued by the Central 
Government on 1 April 2015.379 Chapter 4 of the Foreign Trade Policy , titled "Duty 
Exemption/Remission Schemes" provides that "[s]chemes under this Chapter enable duty free 
import of inputs for export production ."380 The DFIA Scheme is one such duty exemption scheme.  
7.147.   The DFIA Scheme provides for  issuance of authorizations to allow duty free imports of inputs 
that are to be used for production of goods for exports .381 Authorization under the DFIA Scheme 
provides exemption from payment of the basic customs duty.382 The DFIA is issued "on [a] 
post-export basis for products for whic h Standard Input Output Norms have been notified".383 
7.148.   As a result of the amendments to the Foreign Trade Policy introduced in March 2018384, 
sugar mills that exported white sugar between 28 March 2018 and 30 September 2018 are eligible 
to import raw sugar du ty-free between 1 October 2019 and 30 September 2021.385 
7.149.   The DFIA can be transferred from one entity to another. To that end, a DFIA holder may 
request the issuance of a transferrable DFIA from a regional authority. Such requests can be made 
 
373 Notification of 12 September 2019, ( Exhibit  JE-114), para. 3(iii).  
374 Notification of 12 September 2019, ( Exhibit  JE-114), para. 3(iii).  
375 Notifi cation of 12 September 2019, ( Exhibit  JE-114), para. 5(ii).  
376 Notification of 12 September 2019, ( Exhibit  JE-114), para. 6.  
377 Notification of 12 September 2019, (Exhibit  JE-114), para. 2(a).  Sugar mills can submit their claims 
for assistance in two tranche s. The first claim can be submitted after the sugar mill has exported at least 50% 
of its MAEQ. (Ibid. para. 4(i))  
378 MAEQ Order  of 16 September 2019, ( Exhibit  JE-115).  
379 Foreign Trade Policy 2015 -2020, ( Exhibit  AUS-40). 
380 Foreign Trade Policy 2015-2020, ( Exhibit  AUS-40), para. 4.00.  
381 Foreign Trade Policy 2015 -2020, ( Exhibit  AUS-40), para. 4.25 (a). 
382 Foreign Trade Policy 2015 -2020, ( Exhibit  AUS-40), para. 4.26 (i). 
383 Foreign Trade Policy 2015 -2020, ( Exhibit  AUS-40), para. 4.27(i).  
384 Amendment to  the Foreign Trade Policy 2015 -2020, (Exhibit  AUS-41). 
385 Paragraph 4.25(c) of the Foreign Trade Policy reads:  
Export of white sugar under DFIA is allowed under SION SI.No -E 52 till 30.9.2018 and DFIA in 
such cases shall be issued only on or after 1.10.2019 . Such DFIAs shall be valid for imports till 
30.9.2021.  
(Amendment to the Foreign Trade Policy 2015 -2020, ( Exhibit  AUS-41)) WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  within a period  of 12 months from the date of export or six months from the date of realization of 
export proceeds, whichever is later.386 
7.2.3   Order of analysis  
7.150.   As noted above387, Australia and Guatemala raise claims under both the Agreement on 
Agriculture and the SCM Agreemen t. In this section, we address the relationship between the two 
Agreements and our order of analysis.  
7.151.   Both the Agreement on Agriculture and the SCM Agreement contain disciplines regulating 
export subsidies. While the Agreement on Agriculture regulates expo rt subsidies for agricultural 
products, the SCM Agreement contains general disciplines on export subsidies. Article  1(e) of the 
Agreement on Agriculture defines export subsidies as " subsidies contingent upon export 
performance, including the export subsidi es listed in Article 9 " of that Agreement. Article 9.1 of the 
Agreement on Agriculture, in turn, lists  subsidies  that are subject to reduction commitments . 
Article  3.1(a) of the SCM Agreement prohibits subsidies contingent upon export performance, 
"[e]xcep t as provided in the Agreement on Agriculture".388  
7.152.   Article 21.1 of the Agreement on Agriculture, which governs the relationship between the 
Agreement on Agriculture and other Agreements in Annex 1A to the WTO Agreement, states:  
The provisions of GATT 1994 and of other Multilateral Trade Agreements in Annex 1A 
to the WTO Agreement shall apply subject to the provisions of this Agreement.   
7.153.   The SCM Agreement is contained in Annex 1A to the WTO Agreement. Accordingly, the SCM 
Agreement applies "subject to t he provisions" of the Agreement on Agriculture.  
7.154.   An export subsidy for agricultural products can, in principle, be subject to both the 
Agreement on Agriculture and the SCM Agreement. However, pursuant to Article 21.1389, in the 
event of a conflict between the two Agreements, the disciplines of the Agreement on Agriculture 
would prevail over those of the SCM Agreement.390 Accordingly, if an export subsidy were prohibited 
under the SCM  Agreement but permitted under the Agreement on Agriculture, giving rise to a 
conflict, that measure would be WTO -consistent because the Agreement on Agriculture would prevail 
over the SCM Agreement. By contrast, if an export subsidy were prohibited under both the 
Agreement on Agriculture and the SCM Agreement, no conflict  would arise, and the measure would 
be inconsistent with both Agreements.  
7.155.   Consequently, the WTO -consistency of an alleged export subsidy for agricultural products 
has to be examined, in the first place, under the Agreement on Agriculture, followed by the 
SCM Agreement , if necessary.391 We will follow this order of analysis in our examination of the 
complainants' claims.  
 
386 India's response to Panel question  No. 86.a ; Foreign Trade Policy 2015 -2020, ( Exhibit  AUS-40), 
para. 4.29(iv).  
387 See paras. 7.116 -7.117  above.  
388 Furthermore , Article 1.1 of the SCM  Agreement provides that "a subsidy shall be deemed to exist 
if … there is a financial contribution by a government or any public body within the territory of a Member … and 
… a benefit is thereby conferred."  
389 Furthermore, the open ing clause of Article 3.1 of the SCM Agreement provides that the subsidies 
referred to in paragraphs (a) and (b) of that provision shall be prohibited "[e]xcept as provided in the 
Agreement on Agriculture".  
390 This could be the case,  for example, where  "there is an explicit authorization in the text of the 
Agreement on Agriculture that would authorize a measure that, in the absence of such an express authorization, 
would be prohibited by Article 3.1(b) of the SCM  Agreement". (Appellate Body Report, US – Upland Cotton , 
para. 532 (quoting Panel Report, US – Upland Cotton , para. 7.1038))  
391 Appellate Body Reports, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 123; and 
US - Upland Cotton , para. 570.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.2.4   Claims under the Agreement on Agriculture  
7.2.4.1   Introduction  
7.156.   The c omplainants argue that, because India has no export subsidy reduction commitmen ts 
in its Schedule, and consequently no export subsidy entitlements, its measures are inconsistent with 
the obligations set forth in Articles 3.3 and 8 of the Agreement on Agriculture .392 
7.157.   Brazil and Australia submit that India's assistance schemes  are subsi dies contingent on 
export performance within the meaning of Article 9.1(a) of the Agreement on Agriculture .393 For its 
part, Guatemala argues that India's assistance schemes  constitute an export sub sidy under 
Articles  9.1(a) and (c) of the Agreement on Agri culture .394  
7.158.   In the alternative, Australia claim s that, if the Panel  were to  find that the four assistance 
schemes challenged by Australia do not fall within the scope of Article 9.1(a), these schemes would 
be inconsistent with India's obligations under Art icles 8 and 10.1 of the Agreement on Agriculture .395 
Guatemala argues that, if the Panel were to find that the production subsidies and buffer stock 
subsidies are not export contingent, they would constitute domestic support measures and should 
be included in the calculation of India's AMS for sugarcane.396 
7.159.   In response, India argues , first, that the complainants have failed to demonstrate the 
existence of a financial contribution and benefit  with respect to all challenged schemes .397 In 
particular, India submits that " the complainants have not met their burden to demonstrate  [the] 
'making ' of [a] financial contribution such that they can show  [that]  there is a financial 
contribution ".398 India further  submits that the complainants failed to identify any benchmark in a 
relevant market to demonstrate the existence of a benefit and have merely presumed that a benefit 
exists.399 
7.160.   Furthermore , India maintains that, as a developing country, it is entitl ed to grant export 
subsidies for marketing and transportation costs in accordance with Article 9.4 of the A greement on 
Agriculture .400 India submits that the Marketing and Transportation Scheme  falls within  the scope of 
Articles 9.1(d) and 9.1(e) of the A greement on Agriculture  and is therefore permitted under 
Article  9.4 of that Agreement .401 
7.161.   Finally , India considers that the DFIA Scheme does  not constitute a subsidy. In this respect, 
India points out that, pursuant to footnote 1 to the SCM Agreement, an exemption  or remission of 
duties and taxes levied on like products destined for domestic consumption is not a subsidy , to the 
extent that it does not  constitute an "excess remission".402 According to India, th e DFIA Scheme 
falls under the scope of footnote 1 of the SCM Agreement, read together with paragraph  (i) of 
Annex  I to the SCM Agreement, and therefore does not constitute a subsidy  within the meaning of 
the Agreement on Agriculture .403  
7.162.   We begin by providing an overview of relevant provisions of the Agreement on Agriculture. 
Then we will determine whether India's Schedule contains export subsidy reduction commitments.   
Thereafter, we will examine whether each of the four assistance scheme s identified by the 
compla inants is inconsistent with the Agreement on Agriculture.  
 
392 Brazil's first written submission, para. 169; Aus tralia's first written submission, para. 285; Guatemala's 
first written submission, para. 193  
393 Brazil's first written submission, para. 169; Australia's first written submission, para. 286.  
394 Guatemala's first written submission, para. 193. 
395 Australia's first written submission, para. 367. 
396 Guatemala's first written submission, para. 195. 
397 India's first written submission, para. 110; response to Panel question  No. 39.  
398 India's first written submission, para. 107; response to Panel question  No. 39. (emphasis and 
underlining original) See also India's second written submission, paras. 70 -89. 
399 India's first written submission, para. 112; second written submission, paras. 90 -97. 
400 India's first written submission, para. 103. 
401 India's first written submission , para. 116; second written submission, paras. 98 -106. 
402 India's first written submission, p aras. 97-98. 
403 India's first written submission, paras. 124 -125; second written submission, paras. 107 -110. WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.2.4.2   Overview of the relevant provisions  
7.163.   We consider it useful to begin by providing an overview of the provisions of the Agreement 
on Agriculture relevant to the export subsid y claims in these disputes.  
7.164.   Article 1(e) of the Agreement on Agriculture  defines the term "export subsidies" as " subsidies 
contingent upon export performance, including the export subsidies  listed in Article 9 of this 
Agreement".  The rules governing export competition  are set out in Articles 3, 8, 9 , and 10 of the 
Agreement on Agriculture .  
7.165.   Article 8 limits the export subsidies that a Member can provide to those that are consistent 
with the provisions of the Agreement on Agriculture and with that Member's Schedule.404 
Accordingly, a Member providing an export subsidy that is inconsistent with the Agreement on 
Agriculture and its own Schedule will act inconsistently with Article 8.  
7.166.   The level of  export subsidies that a Member can provide is determined by what is inscribed 
in that Member's S chedule. In this regard, Article 3.1 of the Agreement on Agriculture states that 
"export subsidy commitments in Part IV of each Member's Schedule constitute co mmitments limiting 
subsidization and are hereby made an integral  part of GATT 1994.".  
7.167.   Article 3.3 distinguishes between two types of commitments with respect to export 
subsidies:  
Subject to the provisions of paragraphs 2(b) and  4 of Article  9, a Member sha ll 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 t herein and shall not 
provide such subsidies in respect of any agricultural product not specified in that Section 
of its Schedule.  
7.168.   Under the first part of Article 3.3, Members have committed not to provide export subsidies 
listed in Article 9.1 in respect o f scheduled agricultural products405 in excess of budgetary outlays 
and quantity commitment levels specified in the relevant Member's Schedule. Article 9.1 of the 
Agreement on Agriculture  refers to scheduled agricultural product commitments as "reduction 
commitments". Under the second part of Article 3.3, Members have committed not to provide any 
export subsidies listed in Article  9.1 with respect to unscheduled  agricultural products, i.e. those 
that are not specified in the Member's Schedule. Article 3.3 th us prohibits  provid ing export subsidies 
within the meaning of Article 9.1 on unscheduled agricultural products.406  
7.169.   As noted above, the Agreement  on Agriculture  distinguishes  between the commitments for 
scheduled and unscheduled products . Therefore, t o dete rmine a Member's commitment with respect 
to export subsidies on a n agricultural product, it has to  be established  whether the agricultural 
product in question is included in Section II of Part IV of the Member's Schedule and , if so, what 
commitment has been undertaken  therein for that product.  
7.170.   Article 3.3 applies "subject to " the provisions of Articles 9.2(b) and 9.4 , which provide two 
further avenues for Members to grant export subsidies in conformity with the Agreement on 
Agriculture . Article 9.4 , which is relevant to these disputes,  stipulates that, "[d] uring the 
implementation period, developing country Members sh all not be required to undertake 
commitments in respect of the export subsidies listed in subparagraphs (d) and (e) of paragraph 1 
above, provided that these are not applied in a manner that would circumvent reduction 
commitments." The subsidies referred t o in paragraphs (d) and (e) of Article 9.1 of the Agreement 
on Agriculture  are:  
(d) the provision of subsidies to reduce the costs of marketing exports of agricultural 
products (other than widely available export promotion and advisory services) including  
 
404 Article 8, titled "Export Competition Commitments", reads:  
Each Member undertakes not to provide export subsidies otherwise than in conformity wit h this 
Agreement and with the commitments as specified in that Member’s Schedule.  
405 Scheduled agricultural products are those specified in Section II of Part IV of Members' Schedules.  
406 Appellate Body Report, US – FSC, paras. 145 -146. WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  handling, upgrading and other processing costs, and the costs of international transport 
and freight; and  
(e) internal transport and freight charges on export shipments, provided or mandated 
by governments, on terms more favourable than for domestic shipm ents[.] 
7.171.   Paragraph 1 of Article 9 of the Agreement on Agriculture, titled "Export Subsidy 
Commitments",  lists the kinds of export subsidies that are subject to reduction commitments (for 
scheduled products) or are inconsistent  (for unscheduled products) with Article  3.3. The 
complainants allege that India grants export subsidies within the meaning of Articles 9.1(a) and (c) , 
which read:  
1.     The following export subsidies are subject to reduction commitments under this 
Agreeme nt:   
(a) the provision by governments or their agencies of direct subsidies, 
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;  
… 
(c)    payments on the export of an agricultural product that are financed 
by virtue of governmental action, whether or not a charge on the public 
account is involved, including payments that are financed from the 
procee ds of a levy imposed on the agricultural product concerned or on an 
agricultural product from which the exported product is derived [.] 
7.172.   Article 9.1 (a) provides  that direct subsidies that are contingent on export performance are 
subject to reduction commitme nts under the Agreement on Agriculture . Article 9.1 (c) stipulates  that 
payments on exports financed by virtue of governmental action are also subject to reduction 
commitments under the Agreement on Agriculture . 
7.173.   As noted, the inconsistency  of export subsidi es with Article 3.3 relates only to the export 
subsidies listed in Article 9.1. All other subsidies contingent upon export performance, as defined in 
Article 1(e) of the Agreement , are subject to the provisions of Article 10 .407 Article  10.1, which is 
designed to prevent circumventi on of export subsidy commitments , does not permit granting of 
export subsidies not listed in Article 9.1 in a way that would lead, or threaten to lead, to the 
circumvention of export subsidy commitments. It also stipulates that no n-commercial transactions 
should not be used to circumvent export subsidy commitments.408 
7.2.4.3   India's export subsidy commitments  
7.174.   As observed above , pursuant to Article 3.3 of the A greement on Agriculture , the level at 
which India can provide export subsidies listed in Article 9.1 depends on whether India's Schedule 
contains an export subsidy reduction commitment.   
7.175.   The parties agree that sugar is an unscheduled agricultural product for India.409 Our own 
review of India's Schedule and Supporting Tables also demonstrates that India did not make export 
 
407 Article 10.1 , titled "Prevention of Circumvention of Export Subsidy Commitments",  reads:  
Export subsidies not listed in paragraph  1 of Article  9 shall not be applied in a manner which results 
in, or which threatens to lead to, circumvention of export sub sidy commitments; nor shall 
non-commercial transactions be used to circumvent such commitments.  
408 In US – FSC, the Appellate Body understood the term "export subsidy commitments" to have "a wider 
reach [than reduction  commitments] that covers commitments a nd obligations relating to both scheduled and 
unscheduled agricultural products" . (Appellate Body Report, US – FSC, para. 147 ) 
409 Brazil's first written submission, paras. 183 -184; Australia's first written submission, paras. 248 -251; 
Guatemala's first writ ten submission, paras. 256 -257; India's response to Panel question  No. 38.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  subsidy reduction commitments with respect to sugar.410 As a result, if we find that India provides 
export subsidies within the meaning of Article 9.1 of the Agreement on Agriculture, these subsidies 
would be inconsistent with Articles 3.3 and 8 of that Agreement.  
7.176.   We proceed to examine whether the alleged subsidy schemes identified by the complainants 
fall under Articles 9.1(a) and (c) of the Agreement on Agriculture.  As a threshold issue, however, 
we first address India's contention that the Marketing and Transportation Scheme is permitted under 
Article 9.4 of the Agreement on Agriculture.  
7.2.4.4   Whether the Marketing and Transportation Scheme falls under Ar ticle 9.4 of the 
Agreement on Agriculture  
7.2.4.4.1   Introduction  
7.177.   As noted above, the complainants claim, inter alia , that India's Marketing and Transportation 
Scheme is inconsistent with Articles  9.1(a) and (c) of the Agreement on Agriculture. In response, 
India sub mits that the Marketing and Transportation Scheme falls within the scope of Articles 9.1(d) 
and (e) of the Agreement on Agriculture and is therefore permitted under Article 9.4 of that 
Agreement.411 
7.178.   In addressing the parties ' claims and arguments, we consid er it appropriate to examine, 
first, whether the Marketing and Transportation Scheme falls within the scope of Articles 9.1(d) and 
(e) of the Agreement on Agriculture and, if so, whether it meets the requirements of Article 9.4 of 
that Agreement. If we fin d that it does not, we will address the complainants' claims regarding the 
Marketing and Transportation Scheme , together with the other schemes challenged by the 
complainants,  under Articles 9.1(a) and (c) of the Agreement on Agriculture.  
7.2.4.4.2   Burden of proof  
7.179.   The parties disagree as to who bears the burden of proof under Article 9.4 of the Agreement 
on Agriculture. India considers Article 9.4 to be an "autonomous right", not an exception, and 
contends that the complainants had to demonstrate , in their first wri tten submissions,  that the 
Marketing and Transportation Scheme is inconsistent with Article 9.4, which they failed to do.412 In 
this regard, India submits that "[i]f it is [the] complainants ' view that the subsidies under Marketing 
and Transportation Scheme  are not related to costs/items set out in Articles 9.1(d) and (e), they 
must demonstrate their claim with evidence."413 India explains that paragraph 3(1) of the Panel's 
Working Procedures requires the complainants to set out their case in chief, including  an explanation 
why the Marketing and Transportation Scheme does not fall under Article  9.4 of the Agreement on 
Agriculture, in their first written submissions.414 India also submits that "[t]he complainants have 
failed to provide any argument/evidence to s ubstantiate their claim that  [the] Marketing and 
Transportation Scheme does not fall under Article 9.1(d) and 9.1(e)."415 
7.180.   By contrast, Brazil considers that characterization of Article 9.4 as an "autonomous right" or 
an "exception", and any implication of such characterization on the allocation of the initial burden of 
proof, is not determinative of the Panel 's resolution of this dispute.416  This is because , according to 
Brazil,  the underlying issue was fully debated by the parties, and the evidence compelli ngly 
demonstrates that the Marketing and Transportation Scheme does not fall within the scope of 
Articles  9.1(d) and (e).417 For its part, Australia considers that Article 9.4 is an exception to the 
export subsid y obligations in Articles 3.3 and 8 of the Agreement on Agriculture , but does not 
consider the characterization of Article 9.4 determinative of which party bears the in itial burden of 
 
410 Part IV, Section II of India's Schedule, which is relevant to export subsidies, is blank, except for a 
reference in its Column 8 to relevant Supporting Tables. In turn, India's Su pporting Tables state that India "does 
not maintain any export subsidy" within the meaning of Article 9 of the Agreement on Agriculture.  
(G/AG/AGST/IND, p. 4, para. 7)  The only subsidy available to agricultural producers is the exemption from 
income tax of  profits from export sales, which also applies to the exports of industrial goods . (Ibid.)  
411 India's first written submission, para. 116; second written submission, para. 98.  
412 India's opening statement at the second substantive meeting of the Panel, paras . 81, 105, and 109.   
413 India's response to Panel question  No. 57.   
414 India's opening statement at the second substantive meeting of the Panel, para. 82.  
415 India's first written submission, para. 123.  
416 Brazil's response to Panel question  No. 92, para. 133.  
417 Brazil's response to Panel question  No. 92, para. 134.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  raising the provision .418 Guatemala also disagrees with India's characterization of Article  9.4 as an 
autonomous right and submits that the usual rules on burden of proof apply, whereby a party to a 
dispute bears the burden of proving its cl aim or defence.419 Irrespective of whether Article 9.4 is an 
exception or an autonomous right, the complainants submit that they have comprehensively 
demonstrated that the Marketing and Transportation Scheme does not satisfy the terms of 
Article  9.4, read t ogether with Articles 9.1(d) and (e).420 
7.181.   In assessing the complainants' claims regarding the Marketing and Transportation Scheme , 
and India's contention that this Scheme is permitted under Article 9.4 of the Agreement on 
Agriculture, read in conjunction wit h its Articles 9.1(d) and (e), we do not find it necessary to make 
a finding on the legal nature of Article 9.4 of the Agreement on Agriculture. Nor do we consider it 
necessary to decide which party bears the burden of proof on the issue of whether the Marketing 
and Transportation Scheme  falls within Articles 9.1(d) and (e), and therefore is permitted under 
Article 9.4. Regardless of the nature of Article 9.4 and who bears the burden of proof, both the 
complainants and India have submitted extensive argumen ts and evidence  on the issue of whether  
the Marketing and Transportation Scheme fall s under Articles  9.1(d) and (e) and whether it  is hence 
permitted under Article 9.4.421 As explained in section  7.2.4.4.5  below, having examined these 
arguments and evidence, we found the complainants' position to be more persuasive and  sufficient 
for us to conclude that the Marketing and Transportation Scheme do es not fall under Article  9.4. 
7.182.   We disagree with India's argument that the complainants were required to submit their 
evidence and arguments in their first written submissions. Contrary to what India argues, 
paragraph  3(1) of the Panel's Working Procedures does not require the complainants to present 
exhaustively their arguments in the first written submissions. Rather, it requires " each party [to] 
submit a  written submission in which it  presents the facts of the case and its arguments ".422 
Furthermore, India has not shown that it was somehow prejudiced by the complainants' alleged late 
submission of evidence and arguments on this issue. Rather, regardless of whether Article 9.4 
provides an autonomous right or grants an exception, the partie s have exchanged considerable 
evidence and arguments on this issue, and, in our view, India has not demonstrated that the timing 
of these exchanges restricted its ability to respond to the complainants' assertions, or otherwise 
limited the Panel's ability to objectively examine those arguments and evidence in order to assess 
whether the Marketing and Transportation Scheme falls within the scope of Article  9.4.423 
7.183.   We will therefore examine the totality of arguments and evidence submitted by the 
complainants a nd India to decide  whether the Marketing and Transportation Scheme falls under 
Article 9.4 of the Agreement on Agriculture.  
7.2.4.4.3   Main arguments of the parties and third parties  
7.184.   As noted, India submits that the Marketing and Transportation Scheme falls within th e scope 
of Articles 9.1(d) and (e) of the Agreement on Agriculture and is therefore permitted under 
Article  9.4 of that Agreement.424 India argues that the Marketing and Transportation Scheme 
 
418 Australia's response to Panel question  No. 92, paras. 143 and 149 -153.  
419 Guatemala's response to Panel question  No. 92.  
420 Brazil's response to Panel question  No. 92, para. 141; Australia's response to Panel question  No. 92, 
para. 148; Guatemala's response to Panel question  No. 92, para. 110.  
421 Brazil's second written submission, paras. 107 -149; Australia's second written submission, 
paras.  120-169; Guatemala's second written submission, paras. 79 -111; complainants' responses to Panel 
questions Nos. 82 and 84; India's first written submission, paras. 116 -123; opening statement at the first 
substantive meeting of the Panel, paras. 14 -17; closing statement at the first substantive meeting of the Panel, 
paras. 40 -41; second written submission, paras. 98 -106; opening statement at the second substantive meeting 
of the Panel, paras. 77 -83; and response to Panel question No. 92.  
422 Working Procedures of the Panel , para. 3(1). We further note that Australia and Brazil state, in their 
first written submissions, that Article 9.4 is not relevant to the present disputes. (Australia's first written 
submission, para. 245; Brazil's first written submission, para.  185) 
423 We note that, in similar circumstances, panels and the Appellate Body have taken into account the 
extent to which the other party was given an opportunity to respond to new evidence adduced by a party. See 
e.g. Appellate Body Report, Argentina – Textiles and Apparel , paras. 79 -81; and Panel Reports, Korea – Alcoholic 
Beverages , paras. 5.24 -5.25; China – Autos (US) , para. 7.81; EC and certain member States – Large Civil Aircraft 
(Article 21.5 - EU), Annex D -1, para. 18.  
424 India's first written submis sion, para. 116; second written submission, para. 98. India argues that 
paragraph 8 of the Nairobi Ministerial Decision on Export Competition extended the application of Article 9.4 for 
developing countries until 2023. (India's first written submission, fn . 87 to para. 102)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  "envisages payment to sugar mills at a specified rate towards exp enses incurred for the marketing 
including handling, quality up -gradation, debagging, re -bagging and other processing costs of 
sugar".425 In India's view, these costs "fall squarely within the meaning of Article 9.1(d) as specific 
costs incurred as part of and during the process of selling sugar on the export market".426 India 
further points out that payment towards ocean freight, envisaged under the Marketing and 
Transportation Scheme, "falls squarely within the meaning of 'international transport and freigh t'" 
under Article 9.1(d).427 Finally, according to India, payme nts at specified rates towards internal 
transport and freight charges, including loading, unloading, and fobbing, envisage d under the 
Marketing and Transportation Scheme, "fall [] squarely within  the ambit of Article  9.1(e)".428  
7.185.   The complainants argue that  the design and structure of the Marketing and Transportation 
Scheme demonstrate that the purpose of the assistance is to pay sugarcane arrears to farmers and 
not to offset marketing and transpor tation costs429, and that the amount of assistance provided 
under the Marketing and Transportation Scheme is not limited to the costs of marketing and 
transportation actually incurred by sugar mills.430 
7.186.   In particular, Brazil submits that the legal standard u nder Articles 9.1(d) and (e) requires 
"both a qualitative and a quantitative relationship between the receipt of the subsidy at issue and 
incurrence of the types of costs o r charges listed under Articles 9.1(d) and (e)".431 In this regard, 
Brazil maintains that the structure, design and operation of the Marketing and Transportation 
Scheme reveal that it does not fall under Articles 9.1(d) and (e) because neither the qualitative nor 
the quantitative aspect is satisfied.432 Australia maintains that, to fall und er Article 9.1(d), "a subsidy 
must be provided for the distinct purpose  of covering 'costs of marketing exports of agricultural 
products ' including 'the costs of international transport and freight '".433 Likewise, Australia submits 
that, to fall under Article 9.1(e), the subsidy must have "the distinct purpose of creating 
advantageous conditions for 'internal transport and freight charges on export shipments '".434 
Furthermore, assuming that the assistance u nder the Marketing and Transportation Scheme falls 
under Articles  9.1(d) and (e), Australia argues that the Marketing and Transportation Scheme does 
not ensure that the amount of assistance does not exceed the costs incurred.435 For its part, 
Guatemala argu es that, to fall under Article 9.1(d) or (e), a subsidy "must correspond qualitatively 
to the types of costs specified therein and must be limited quantitatively to the amount of such 
costs".436 According to Guatemala, the design and structure of the Market ing and Transportation 
 
425 India's first written submission, para. 119.  
426 India's first written submission , para. 119 (referring to Notification of 12 September 2019, 
(Exhibit  JE-114), para. 3(i)(a)). (emphasis omitted); second written submission, para. 99.  
427 India's first written submission, para. 120 (referring to Notification of 12 September 2019, 
(Exhibit  JE-114), para. 3(i)(c)); second written submission, para. 99.  
428 India's first written submission, para. 12 2 (referring to Notification of 12 September  2019, 
(Exhibit  JE-114), para. 3(i)(b)); second written submission, para. 99.  
429 Brazil's second written submission, paras. 127 -130; Australia's second written submission, 
paras.  130-131; Guatemala's second written submission, para. 81.  
430 Brazil's second written submission, paras. 134 -143; Australia's second written submission, 
paras.  147-169; Guatemala's second written submission, par as. 95-108. 
431 According to Brazil, qualitatively, Article 9.1(d) requires a rational relationship between the subsidies 
at issue, on the one hand, and the "costs of marketing ", on the other hand.  Similarly, and again qualitatively, 
Article 9.1(e) requires that the subs idies must take the form of "internal transport and freight charges " that are 
"more favourable than for domestic shipment ".  In terms of the required quantitative relationship, Brazil argues 
that both provisions require, at a minimum, that the subsidy amou nt not exceed the actual costs under the 
relevant cost categories or charges. Finally, Brazil argues that these requirements and the resulting scope of 
Articles 9.1(d) and (e) must be interpreted strictly and narrowly in order to ensure that there is no ci rcumvention 
of the export subsidy reduction commitments.  (Brazil's second written submission, paras. 118 and 119 -121) 
432 Specifically, Brazil argues that (i) the actual purpose of the Marketing and Transportation  Scheme is 
the payment of cane price dues of  farmers; (ii) this purpose cannot be reconciled with the required relationship 
to the relevant costs and charges under Articles 9.1(d) and (e); and (iii) the M arketing and Transportation  
Scheme fails to consider, and in fact far exceeds, the actual costs of the relevant cost items.  (Brazil's second 
written submission, paras. 125, 131, 133, and 143)  
433 Australia's s econd written submission, para. 121. (underlining omitted) See also Australia's response 
to Panel question  No. 56, para. 36.  
434 Australia's secon d written submission, para. 122; response to Panel question  No. 56, paras. 43 -44. 
435 Australia's second written submission, para. 149. Australia explains that, given the clear lack of a 
relationship between the Marketing and Transportation Scheme and the ki nds of costs identified in Articles 9.1(d) 
and (e), it is unnecessary for the Panel to examine whether payments under the Marketing and Transportation 
Scheme exceed those actual costs. (Ibid. para. 148)  
436 Guatemala's second written submission, para. 80. (emphasis omitted)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Scheme reveals that the assistance under that Scheme is provided for the purpose of paying 
sugar cane arrears owed to farmers, and not for the purpose of offsetting costs reflected in 
Articles  9.1(d) and  (e). Furthermore, in Guatemala 's view, even if the assistance under the 
Marketing and Transportation Scheme was granted for a purpose reflected in Article  9.1(d)  or (e), 
the amount of assistance exceeds the costs actually incurred b y sugar mills for the marketing or 
transportation of s ugar exports.437 
7.187.   As a third party, the European Union does not take a position on whether the  Marketing and 
Transportation Scheme  falls within the scope of Articles 9.1(d) and (e) .438 Nevertheless, the 
European Union invites the Panel to carefully examine Australia's allegation that the amounts of 
assistance are not linked to the actual costs of marketing and transportation.439 According to the 
European Union, the mere fact that the granting authority describes a subsidy as one that cover s 
transport or marketing expenses is not  sufficient to bring that subsidy  within the scope of 
Article  9.1 (d) or (e). Instead,  in the European Union's view,  "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. "440 
7.2.4.4.4   Legal standard  
7.188.   Article 9.4 of the Agreement on Agriculture provides:  
During the implementation period, developing country Members shall not be required 
to undertake commitments in respect of the export subsidies listed in subparagraphs 
(d) and (e) of paragraph 1 above, provided that these are not applied in a manner that 
would circumvent reduction commitments.  
7.189.   Articles 9.1(d) and (e) of the Agreement on Agr iculture refer to:  
(d) the provision of subsidies to reduce the costs of marketing exports of agricultural 
products (other than widely available export promotion and advisory services) including 
handling, upgrading and other processing costs, and the costs  of international transport 
and freight;  
(e) internal transport and freight charges on export shipments, provided or mandated 
by governments, on terms more favourable than for domestic shipments [.] 
7.190.   Both Articles 9.1(d) and (e) mention  specific types of cos ts related to exportation. In 
particular, Article  9.1(d) refers  to costs of marketing  and international transport and freight, whereas 
Article 9.1(e) refers to charges on internal transport and freight on export shipments. Therefore, we 
are of the view tha t, for a subsidy program me to fall within the scope of either of these provisions, 
it must be related to  one of the types of costs  addressed in these two provisions . 
7.191.   The same view was expressed by the Appellate Body in US – FSC.  According to the Appellate  
Body, Article  9.1(d) does not merely refer to any costs that effectively reduce the cost of marketing. 
Rather, it covers "specific types of costs that are incurred as part of and during the process of selling 
a product."441 The costs referred to in Article  9.1(d) thus "differ from general business costs, such 
as administrative overhead and debt financing costs, which are not specific to the process of putting 
a product on the market, and which are, therefore, related to the marketing of exports only in the 
broadest sense."442 In our view, the same logic applies to Article 9.1(e): t o fall under that provision , 
a governmental action must bring about a price advantage for internal transport and freight charges 
on export shipments.  
 
437 Guatemala's second written submission, para. 81.  
438 European Union's third -party submission, para. 66.  
439 European Union's third -party submission, paras. 66 -67. 
440 European Union's third -party submission, para. 67.  
441 Appellate Body Report, US – FSC, para. 130. In that dispute, the United States appealed the panel's 
finding that, by reducing an exporter's income tax liability, FSC subsidies effectively reduce d the cost of 
marketing agricultu ral products . The United States argued that although income taxes may be a cost of doing 
business, they are not part of the "costs of marketing exports" under Article 9.1(d). The Appellate Body reversed 
the panel's finding. (Ibid. paras. 122 -132)  
442 Appell ate Body Report, US – FSC, para. 130.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.192.   Furthermore, in our view, the requirements of Articles 9.1(d) and (e) involve a limitation on 
the amount of assistance provided under a given subsidy programme.443 In this regard, Article 9.1(d) 
stipulates that the purpose of the subsidy is "to reduce" (which means "to make smaller,  
diminish"444) the costs of marketing  as well as international transport and freight. Accordingly, to 
fall under Article 9.1(d), the amount of the subsidy should not exceed the actual costs of marketing  
and international transport and freight. Otherwise, it  cannot be said that the purpose of the subsidy 
is to "reduce" such costs, as required under this provision. While Article 9.1(e) does not contain 
specific language regarding the amount of the subsidy, it indicate s that the subsidy has to be one 
that invol ves internal transport and freight charges on export shipments, provided on terms more 
favourable than for domestic shipments.445 Logically, therefore, to fall under Article 9.1(e), the 
amount of the subsidy should not exceed the amount of internal transpor t and freight  charges for 
domestic shipments . The contrary view would defeat the purpose of Article 9.4 of the A greement on 
Agriculture , which sets forth a time -limited exception for developing country Members to provide 
export subsidies for specific types  of costs subject to the requirement that "these are not applied in 
a manner that would circumvent reduction commitments".  
7.193.   With these considerations in mind, we now assess  whether the Marketing and Transportation 
Scheme falls within the scope of Articles 9 .1(d) and (e) of the Agreement on Agriculture.  
7.2.4.4.5   Assessment of the Marketing and Transportation Scheme under Articles 9.1(d) 
and 9.1(e) of the Agreement on Agriculture  
7.194.   The parties disagree whether the assistance provided under the Marketing and 
Transportatio n Scheme relates  to one of the types of costs listed in those provisions  and whether 
the amount of assistance provided under th is Scheme exceeds the actual relevant costs incurred by 
sugar mills.  
7.195.   India argues, first, that the assistance under the Marketing  and Transportation Scheme falls 
under the types of costs identified in Articles 9.1(d) and (e).446 Second, according to India, "the 
amount of assistance provided has been calculated based on extensive stakeholder consultation such 
that the lump sum amount arrived at does not exceed the costs typically incurred by a sugar mill 
towards such expenses."447 In support of its position, India submit s "a few sample communications 
sent to various stakeholders seeking relevant information in order to frame the Marketi ng and 
Transportation Scheme".448 
7.196.   The complainants submit that the design , structure  and operation  of the Marketing and 
Transportation Scheme demonstrate that the purpose of the assistance provided is to pay sugarcane 
arrears to farmers and not to offset ma rketing and transportation costs .449 According to the 
complainants, the amount of assistance provided under the Marketing and Transportation Scheme 
is not limited to the costs of marketing and transportation actually incurred by sugar mills.450 
7.197.   We address, in turn, whether (i) the assistance provided under the Marketing and 
Transportation Scheme relates  to one of the types of costs listed in Articles 9.1(d) and (e), and (ii) 
the amount of assistance provided under th is Scheme exceeds the actual c osts incurred by sugar 
mills.  
 
443 The parties agree that the amount of the subsidy should not exceed the actual expenses o f marketing 
and transportation . (Brazil's second written submission, para. 120; Australia's second written submission, para. 
121; Guatemala's second written submission, para. 80 ; India's response to Panel question s Nos. 35 and 81)  
444 Oxford English Dictionary online, definition of "reduce" 
https://w ww.oed.com/view/Entry/160503?rskey=M9oHcY&result=2#eid  (accessed 22 July 2021).  
445 As the panel in Canada – Dairy  observed, "Article 9.1(e) is directed at reduced  internal transport and 
freight charges  on export shipments." (Panel Report, Canada – Dairy , para. 7.95 (emphasis original))  
446 India's first written submission, para. 123.  
447 India's opening statement at the first  substantive  meeting of the Panel, para. 17.  
448 India's response to Panel question  No. 57 (referring to Exhibits IND -15, IND-16, IND-17, and IND-18). 
449 Brazil's second written submission, paras. 127 -130; Australia's second written submission, 
paras.  130-131; Guatemala's second written submission, para.  81. 
450 Brazil's second written submission, paras. 134 -143; Australia's second written submission, 
paras.  147-169; Guatemala's second written submission, pars. 95 -108. WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.2.4.4.5.1   Whether the assistance  under the Marketing and Transportation Scheme 
relates to the types of costs in Articles 9.1(d) and (e)  
7.198.   Consistent with the legal standard articulated above,  we start by examining whether the 
assistance p rovided under the Marketing and Transportation Scheme relates to the types of costs 
listed in Article 9.1(d) and (e) of the Agreement on Agriculture . 
7.199.   As an initial point, we note that, as India argues, the Marketing and Transportation Scheme 
contains eleme nts that refer to costs of marketing  and transportation.451 First, the full title of the 
Marketing and Transportation Scheme is "Scheme for providing assistance to sugar mills for 
expenses on marketing costs  including handling, upgrading and other processin g costs and costs of 
international and internal transport and freight charges  on export of sugar".452 Furthermore, we 
recall that, u nder the Marketing and Transportation Scheme,  the Central Government provide s a 
"lump sum assistance for expenses on export of sugar limited to MAEQ of sugar mills for the sugar 
season 2019 -20, in the following manner ": (i) for "marketing including handling, quality 
up-gradation, debagging [and] re -bagging and other processing costs etc.", an amount of INR 4400 
per tonne; (ii) for "internal transport and freight charges including loading, unloading, and fobbing 
etc.", an amount of INR 3428 per tonne; and (iii) for "ocean freight against shipment from Indian 
ports to the ports of destination countries etc.", an amount of INR 2620  per tonne  of sugar .453 
7.200.   The above -mentioned categories of expenses relate to marketing, and internal and 
international transportation costs. Thus, certain provisions of the Marketing and Transportation 
Scheme specify that assistance under this Scheme is provided for marketing and transport ation 
expenses  incurred  on export s of sugar.  
7.201.   However, other elements of the Marketing and Transportation Scheme indicat e that its actual 
purpose is to pay the sugar cane price dues of farmers. In particular, paragraph 1 o f the Marketing 
and Transportation Scheme, titled "Purpose of assistance", states that "[t]he funds to be provided 
as assistance to facilitate export [are] to be used for payment of cane price dues of farmers for the 
sugar season 2019 -20 and cane price arr ears of previous sugar seasons, if any."454 Likewise, the 
preamble to the Marketing and Transportation Scheme states that the assistance is provided "with 
a view to facilitat[ing]  export of sugar during the sugar season 2019 -20 … thereby improving the 
liquidity position of sugar mills enabling them to clear cane price dues of farmers for sugar season 
2019-20".455 Paragraph 5 of the Marketing and Transportation Scheme also states that "[t]he 
assistance is to be used for payment of cane price dues of farmers fo r the sugar season 2019 -20 
and cane price arrears of previous sugar seasons, if any."456 
7.202.   Furthermore, in order to ensure that the assistance under the Marketing and Transportation 
Scheme is directly credited to the accounts of  sugarcane  farmers, sugar mill s must open separate 
no-lien account s and furnish to the bank the details and extent of the sugar cane price dues for the 
2019-20 and previous sugar seasons. The bank credits the amounts of assistance directly into the 
accounts of  sugarcane  farmers "on behal f of mills against cane dues payable and subsequent 
balance, if any, shall be credited into [the] mill's account".457 Within three months from the date of 
the subsidy payment , the sugar mill must submit to the DFPD a utilization certificate certifying that 
the subsidy was used for the payment of farmers' sugar cane price dues.458 If a sugar mill were to 
fail to submit the utilization certificate, the unduly received amount of assistance would be recovered 
and the mill would be prevented from benefiting from fu ture schemes announced by the Central 
Government.459 
7.203.   Notably, there is no requirement that sugar mills certify in the utilization certificate that the 
assistance was used to reduce the costs of marketing or transportation. Rather, sugar mills must 
certify t hat the assistance was used for paying sugar cane price dues of farmers. Thus, based on the 
 
451 By referring t o "marketing and transportation", we refer to both costs of international  transport and 
freight  and internal transport and freight charges .  
452 Notification of 12 September 2019, ( Exhibit  JE-114). (underlining added)  
453 Notification of 12 September 2019, ( Exhibit  JE-114), para. 3(i).  
454 Notification of 12 September 2019, ( Exhibit  JE-114), para. 1.  
455 Notification of 12 September 2019, ( Exhibit  JE-114), preamble.  
456 Notification of 12 September 2019, ( Exhibit  JE-114), para. 5(i).  
457 Notification of 12 September 2019, ( Exhibit  JE-114), para. 5(ii).  
458 Notification of 12 September 2019, ( Exhibit  JE-114), para. 6.  
459 Notification of 12 September 2019, ( Exhibit  JE-114), para. 6.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  text of the Marketing and Transportation Scheme, the principal purpose for which the assistance 
must be used seems to be the payment of sugar cane price dues of farme rs. Using it for other 
purposes would be inconsistent with the relevant regulatory prescriptions and would result in the 
Central Government recovering the payment from the sugar mill and prohibiting it from applying for 
future assistance schemes.  Although the Scheme indicates that any money left after payment of 
sugarcane price arrears will be paid to the mill, there seems to be no requirement that such amounts 
be used towards marketing or transportation costs.  
7.204.   India argues that, by " improv[ing] the liquidi ty of the sugar mills",  the assistance under the 
Marketing and Transportation Scheme "ultimately reduc[es] the … transport and marketing costs 
incurred".460 We are not convinced by this argument. Even if the assistance under the Marketing and 
Transportation Scheme may ultimately contribute to the reduction of marketing and transportation 
costs, the purpose of the assistance, as stated in various provisions of  the Marketing and 
Transportation Scheme, is the payment of  sugar cane price arrears .461 
7.205.   In light of the above, we conclude  that the assistance provided under the Marketing and 
Transportation Scheme does not relate to the types of costs listed in Articles 9. 1(d) and (e) of the 
Agreement on Agriculture.462 
7.2.4.4.5.2   Whether the amount of assistance provided under the Marketing and 
Transportation Scheme exceeds the actual marketing and transportation costs  
7.206.   Our conclusion above that the assistance under the Marketing and T ransportation Scheme  
does not relate to the types of costs listed in Articles 9.1(d) and (e) , in principle,  suffices to find that 
the Marketing and Transportation Scheme  does not fall within the scope of those provisions. 
However, for the sake of completen ess, we also examine the parties' arguments regarding the 
amount of assistance  provided under this Scheme.  
7.207.   India submits that the amount of assistance provided under the Marketing and 
Transportation Scheme was determined based on extensive consultations w ith relevant 
stakeholders, and does not exceed the costs typically incurred by a sugar mill on marketing and 
transportation.463 By contrast, the complainants argue that the application of a single and 
unchanging rate of assistance for all exports indicates that the Marketing and Transportation Scheme 
is not linked to the actual marketing and transportation costs.464 
7.208.   As noted above, we consider that, under Article 9.1(d) of the Agreement on Agriculture, the 
amount of the subsidy should not exceed the  actual  costs of marketing  and international 
transportation, and under Article 9.1(e) the amount of the subsidy should not exceed the internal 
transport and freight  charges for domestic shipments . The parties also agree with this view .465  
7.209.   We note that, pur suant to paragraph 3 of the Marketing and Transportation Scheme, 
assistance is provided in the form of a lump sum according to a set rate per tonne of sugar exported. 
Accordingly, the amount of assistance is determined based on the volume of sugar exports,  and not 
the actual costs of marketing and transportation  borne by the sugar mills . Furthermore, the 
assistance is provided in the form of a lump sum and there is no mechanism  in place  to ensure that 
the amount of assistance does not exceed the costs of tr ansportation incurred by a sugar mill.  
 
460 India's opening statement at the first substantive meeting with the Panel, para. 15.  
461 As noted, Article 9.1(d) does not merel y refer to any costs that effectively reduce the cost of 
marketing. Rather, it covers specific types of costs that are incurred as part of and during the process of selling 
a product . Such costs differ from general business costs, which are not specific to  the process of putting a 
product on the market . Likewise, to fall under Article 9.1(e), a governmental action must bring about a price 
advantage for internal transport and freight charges on export shipments.  (See para. 7.191  above)  
462 Our conclusion finds support in the Appellate Body's findings in US – FSC that Article 9.1(d) does not 
merely refer to " any 'cost of doing business' that 'effectively reduce[s] the cost  of marketing' products ". 
(Appellate Body Report, US – FSC, para. 130 (emphasis original))  
463 India's closing statement at the first substantive meeting of the Panel, para. 42; response to Panel 
question  No. 57 (referring to Exhibits IND -15, IND -16, IND -17, and IND -18). 
464 Brazil's second written submission, paras. 134 -143; Australia's second written submission, paras. 
147-169; Guatemala's second written submission, paras. 95 -108. 
465 Brazil's second written submission, para. 120; Australia's second written submission, para. 121; 
Guatemala's second written submission, para. 80 ; India's response to Panel question  No. 35 . WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.210.   The complainants' evidence demonstrates that sugar mills are located in different parts of 
India and export sugar on different delivery terms, hence incur ring different amounts of 
transportation costs. In particular, the complainants have submitted evidence demonstrating that 
sugar mills export sugar on: (i) an ex Works (EXW)466 basis, which means that the seller incurs 
neither internal nor international transpo rtation costs467; (ii) a Free on Board (FOB)468 basis, which 
means that the seller does not pay the cost of international shipping from the port of departure to 
the final destination469; or (iii) a Cost Insurance & Freight (CIF)470 basis, which means that the seller 
covers the costs and freight necessary to deliver the goods to the port named by the buyer.471 The 
use of such different terms in their sales contracts indicates that not all mills will incur transportation 
costs in all sales and that transportation costs incurred by mills will differ. Logically, therefore, lump 
sum payments, the amount of which is based on the quantity  of tonnes of sugar exported by each 
mill, are not related to the actual transportation costs incurred by the mills.  
7.211.   Furthermore, the  complainants have submitted evidence demonstrating that, at least for 
some sugar mills, the amount of the lump sum provided under the Marketing and Transportation 
Scheme exceeds the actual costs of transportation.472 This evidence further supports our view  that 
the Marketing and Transportation Scheme does not ensure that the amount of assistance does not 
exceed the actual costs of transportation.  
7.212.   India submits that "the amount of assistance provided has been calculated based on 
extensive stakeholder consul tation such that the lump sum amount arrived at does not exceed the 
costs typically incurred by a sugar mill towards such expenses."473 In support of its assertion, India 
provided communications from the DFPD requesting information from several entities (Mi nistry of 
Railways, Food Corporation of India, Metals and Minerals Trading Corporation of India Limited 
(MMTC), and State Trading Corporation of India Ltd (STC)) regarding estimated costs of marketing 
and transportation in the context of sugar exports in o rder to determine the amount of a subsidy.474  
7.213.   However, India did not provide any further evidence that would demonstrate what kind of 
replies the DFPD received and how those replies were taken into account in determining the rates 
of assistance under the M arketing and Transportation Scheme. In response to a question from the 
 
466 This rule of INCOTERMS places minimum responsibility on the seller, who merely has to make the 
goods available, suitably packaged, at the specified place, usually the seller's factory or depot. The buyer is 
responsible for: loading the goods onto a vehicle; all export procedures; onward transport; and all costs arising 
after collection of the goods. (See International Chamber of Comme rce (ICC), Incoterms Rules, (Exhibit  JE-159))  
467 Tender Notice for Export of Sugar (Jawahar S.S.S.K. Ltd), (Exhibit JE -160), para. 4; Tender Notice 
for Sale of Raw Sugar or White Sugar for Export (Shree Datta S.S.S.K. Ltd), (Exhibit JE -161); and HPCL 
Biofuels Ltd Sugar Export Contracts Specifications, (Exhibit  JE-162), Annexure 1, paras. 1.6, 3.12 and 5.2.  
468 Under the FOB rule, the seller delivers the goods when they are cleared for export and loaded on board 
the vessel at the named port. Once the goods hav e been loaded on board, risk transfers to the buyer, who bears 
all costs thereafter. (See International Chamber of Commerce (ICC), Incoterms Rules, (Exhibit  JE-159))  
469 Reuters, "Indian sugar mills clinch export deals as prices jump – industry", 7 January 2021, 
(Exhibit  JE-163); and Reuters, "Indian sugar exports poised to hit record 5 million tonnes this year", 17 
December 2019, (Exhibit JE -164). 
470 Under the CIF rule, the s eller arranges and pays for transport to named port. The s eller delivers the 
goods  when they are  cleared for export  and loaded on board the vessel. The s eller also arranges and pays for 
insurance for the goods for carriage to the named port.  (See International Chamber of Commerce (ICC), 
Incoterms Rules, (Exhibit  JE-159))  
471 Brazil's secon d written submission, para. 13 8; Australia's second written submission, 
paras. 165-168; Guatemala's second written submission, paras. 101 and 104. See also Avadh Sugar & Energy 
Limited Annual Report 2019 -20, (Exhibit JE -158); Balrampur Chini Mills Limited Annual Report 2019 -20, 
(Exhibit JE -157); Dhampur Sugar Mills Limited Annual Report 2019 -20, (Exhibit JE -149).  
472 In particular, the Consultancy Report by Green Pool Commodity Specialists, submitted by the 
complainants, demonstrates that the average freight rail cost from eleven mills in Maharashtra, which is the 
second largest exporting State in India, to the two Ma harashtran ports (Jawaharlal Nehru Port (JNPT) and Jaigad) 
is INR  489 and INR 817 per tonne, respectively. The fobbing costs of the Maharashtran mills, such as storage 
and handling, are between INR 800 and INR 1000 per tonne. ( Consultancy Report, February 2021, 
(Exhibit  JE-165), Table 4 and p. 5, note 4) Thus, with the higher fobbing cost of INR 1000 factored in, the average 
cost of internal transportation and fobbing would be INR 1489 and INR 1817 per tonne, which is lower than the 
lump sum of INR 3428 per  tonne under paragraph 3(i)(b) of the Marketing and Transportation Scheme. (See 
Brazil's second written submission, para. 140; Australia's second written submission, paras.  158-161; 
Guatemala's second written submission, para. 104)  
473 India's opening statem ent at the first  substantive  meeting of the Panel, para. 17.  
474 DFPD's Letter to Food Corporation of India of 25 June 2019, (Exhibit  IND-15); DFPD's Letter to Ministry 
of Railways of 26 June 2019, (Exhibit  IND-16); DFPD's Office Memorandum to MMTC of 11 Jul y 2019, 
(Exhibit  IND-17), and DFPD's Office Memorandum to STC of 11 July 2019, (Exhibit  IND-18).  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Panel, India stated that it was unable to share the responses from the relevant stakeholders , or how 
they were reflected in determining the rate of assistance due to the business confid ential nature of 
such information.475 In this regard, we note that the DSU contains rules regarding confidentiality of 
information submitted by the parties.476 Furthermore, if India considered the general level of 
protection provided by the DSU insufficient,  it could have requested the Panel to adopt additional 
procedures for the treatment and handling of business confidential information pursuant to 
paragraph 2(3) of the Working Procedures.  
7.214.   The only response that India has submitted is an office memorandum from the Ministry of 
Railways, which identifies "per ton[n]e freight rate for foodgrains at different distances".477 This 
piece of evidence provides information regarding the base transportation rate per tonne of foodgrains 
for the distance s of 500, 1 ,000, 1500, 2 ,000, and 2 ,500 kilometres.478 However, we do not see how 
this information support s India's assertion that the amount of assistance under the Marketing and 
Transportation Scheme does not exceed the actual marketing and transportation expenses. As 
noted, since this Scheme involves lump sum payments based on the volume of sugar exported , it 
does not take into account the differences in transportation expenses among sugar mills and thus 
does not ensure that the amount of assistance does not exceed the actual costs of transportation.  
7.215.     In light of the above, we conclude that the Marketing and Transportation Scheme does not 
ensure that the amount of assistance provided does not exceed  the actual  costs of marketing  and 
international transportation in terms  of Article 9.1(d), and the actual costs of  internal transport and 
freight  charges for domestic shipments  in terms of Article 9.1(e).  
7.2.4.4.6   Conclusion  
7.216.   We have concluded  that the assistance provided under the Marketing and Transportation 
Scheme does not relate to  the types of costs listed in Articles  9.1(d) and (e) of the Agreement on 
Agriculture. We have also concluded that the Marketing and Transportation Scheme does not ensure 
that the amount of assistance does not exceed the actual costs of marketing and inter national 
transportation in terms of Article 9.1(d), and the actual costs of internal transport and freight charges 
for domestic shipments in terms of Article 9.1(e). We therefore reject India's argument that the 
Marketing and Transportation Scheme falls un der Articles  9.1(d) and (e), and , as a result, under 
Article  9.4 of the Agreement on Agriculture.  
7.2.4.5   Whether India's assistance  schemes are subsidies contingent on export 
performance under Article 9.1(a) of the Agreement on Agriculture  
7.2.4.5.1   Introduction  
7.217.   As noted, the complainants argue that India's  Production Assistance, Buffer Stock, Marketing 
and Transportation, and DFIA Schemes  constitute export subsidies within the meaning of 
Article  9.1(a) of the Agreement on Agriculture because they gra nt assistance on the condition that 
sugar mills export a certain quantity of sugar each year.479 The complainants assert that, consistent 
with the requirements of Article 9.1(a), the aforementioned Schemes are (i) direct subsidies, 
including payments in kin d; (ii) provided by a government or its agency; (iii) provided "to a firm, to 
 
475 India's response to Panel question  No. 82(c).  
476 Article 18.2 of the DSU specifically provides that "[w]ritten submissions to the panel or the Appellate 
Body shall be treated as confidential, but shall be made available to the parties to the dispute." Parties to a 
dispute are free to disclose statements of their own positions to the public, but "shall treat as confidential 
information submitted by another Memb er to the panel or the Appellate Body which that Member has designated 
as confidential".  Article 13.1 of the DSU further provides that "[a] panel shall have the right to seek information 
and technical advice from any individual or body which it deems appro priate". WTO Members "should respond 
promptly and fully to any request by a panel for such information as the panel considers necessary and 
appropriate". Confidential information that is provided to a panel under Article 13.1 "shall not be revealed without  
formal authorization from the individual, body, or authorities of the Member providing the information".  
477 Office Memorandum from Ministry of Railways to DFPD of 28 June 2019, (Exhibit  IND-23). 
478 We note that the parties disagree as to whether the term " foodgrains" covers sugar. (Guatemala's 
closing statement at the second substantive meeting of the Panel, para. 3.6;  India's response to Panel 
question  No. 82(b)) We do not find it necessary to address this issue since, in any event, we do not consider 
that Exhibit  IND-23 supports India's position.  
479 The DFIA Scheme is challenged only by Australia.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  an industry, to producers of an agricultural product, to a cooperative or other association of such 
producers, or to a marketing board "; and (iv) contingent on export performance .480 
7.218.   In response, India argues that the complainants have failed to demonstrate the existence of 
a financial contribution and benefit  with respect to the Production Assistance, Buffer Stock, and 
Marketing and Transportation Schemes .481 In this regard, India considers that Article  1.1(a)(1) of 
the SCM Agreement constitutes relevant context for construing the meaning of the term "export 
subsidies" in Article 9.1 of the Agreement on Agriculture.482 India explains that "the complainants 
have not met their burden to demonstrate [the] 'making' of [a] financial contribution such that they 
can show that there is a financial contribution".483 In Ind ia's view, "[t] he use of the operative term 
'is' in Article  1.1(a)(1)  [of the SCM Agreement]  indicates that a subsidy can be said to 'exist' only 
where the government has actually  made a 'financial contribution ' under the challenged 
measures. "484 Thus, acco rding to India, a demonstration of an actual transfer of funds is required to 
establish the existence of a subsidy.485 Moreover , India submits that the complainants failed to 
identify any benchmark in a relevant market to demonstrate the existence of a bene fit and have 
merely presumed that a benefit exists.486  
7.219.   In addition, with respect to the DFIA Scheme challenged by Australia, India argues that it 
falls under the scope of footnote 1 to the SCM Agreement, read together with item (i) of Annex I to 
the SCM Ag reement, and therefore does not constitute a subsidy  within the meaning of the 
Agreement on Agriculture .487 
7.220.   In addressing the complainants' claims, we will first set out the legal standard under 
Article  9.1(a) of the Agreement on Agriculture. We will then examine the consistency with that 
provision of each of the four assistance programmes challenged by the complainants.  
7.2.4.5.2   Legal standard  
7.221.   Article 9.1(a) reads:  
1. The following  export subsidies are subject t o reduction commitments under this 
Agreement:  
(a) the provision  by governments or their agencies of direct subsidies, including 
payments -in-kind, to a firm, to an industry, to producers of an agricultural product, to 
a cooperative or other association of s uch producers, or to a marketing board, 
contingent on export performance [.] 
7.222.   Based on the text of the provision, to fall under Article 9.1(a), assistance must (i)  be 
provided by a government or its agency; (ii)  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 ; (iii) be a 
direct subsidy, including payments in kind; and (iv) be contingent on export performance. We 
examine each of these elements in turn.  
7.223.   First, A rticle 9.1(a) requires the grantor of the subsidy to be a government or its agency. 
The term "government" is defined, inter alia , as "[t] he governing power in a country or state; the 
body of people charged with the duty of governing ", or "[t] he continuous exercise of authority over 
a person, group, etc.; guardianship, protection; control ".488 In turn, a government agency is "an 
entity which exercises powers vested in it by a 'government' for the purpose of performing functions 
of a 'governmental' character, that is, to 'regulate', 'restrain', 'supervise' or 'control' the conduct of 
 
480 Brazil's first written submission, paras. 200 -229; Australia's first written submission, paras. 288 -365; 
Guatemala's first written submission, paras. 208 -241.  
481 India's first written submission, para. 110.  
482 India's first written submission, para. 105.  
483 India's first written submission, para. 107. (emphasis and underlining original)  
484 India's first written submission, para. 107. (emphasis original)  
485 India's second written submission, paras. 67 -89. 
486 India's first written submission, para. 112; second written submission, para. 94.  
487 India's first written submission, paras. 124 and 97.  
488 Oxford English Dictionary online, definition of "government" 
https://www.oed.com/view/Entry/80321?redirectedFrom=government#eid  (accessed 22 July 2021).  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  private citizens".489 A granting entity therefore has to be vested with such power and perform such 
functions in order for the assistance it provides to fall under Article 9.1(a).  
7.224.   Second, the recipient of a subsidy must be a firm, an industry, producers of an agricultural 
product, a cooperative or other association of such producers, or a marketing board. The Agreement 
on Agriculture does not contain separate definitions for these c ategories of recipients. Based on its 
ordinary meaning, we consider that the term "producers of an agricultural product" refers to entities 
that "make" or "grow"490 agricultural products within the meaning of the Agreement on 
Agriculture.491 
7.225.   Third, under Article 9.1(a), the assistance must be in the form of a direct subsidy.492 The 
term "direct" is defined, inter alia , as "s traightforward, uninterrupted, immediate ".493 In our view, 
in the context of Article 9.1(a), this term indicates that the subsidy must be provided from the 
grantor to the recipient in a straightforward and immediate manner. With respect to the term 
"subsidy", we note that it is not defined in  the Agreement on Agriculture . However, the definition of 
a "subsidy" in Article 1.1 of the S CM Agreement  constitutes relevant context for interpreting the 
term "subsidies" in Article 9.1(a) of the Agreement on Agriculture.494 Pursuant to Article 1.1 of the 
SCM Agreement, a "subsidy" shall be deemed to exist if there is a "financial contribution by  a 
government or any public body" and "a benefit is thereby conferred".495 Below, we elaborate on the 
elements of Article 1.1 of the SCM Agreement that are relevant to these disputes.  
7.226.   Article 1.1(a)(1) of the SCM Agreement lists government practices that constitute a financial 
contribution for the purposes of that Agreement, which include a "direct transfer of funds", " potential 
direct transfers of funds ", and "government revenue that is otherwise due [that] is forgone or not 
collected".496 Direct transfers of funds can take the form of a grant.497 Grants consist of transactions 
in which money or money's worth is given to a recipient, normally without an obligation or 
expectation that anything will be provided to the grantor in return.498  
7.227.   Under  Article 1.1(b) of the SCM Agreement, a financial contribution by a government is a 
subsidy if "a benefit is thereby conferred". A benefit within the meaning of Article  1.1(b) is an 
"advantage"499 to the recipient of the financial contribution.  The term "be nefit", as used in 
Article  1.1(b), "implies some kind of comparison" to determine whether "the 'financial contribution' 
makes the recipient 'better off' than it would otherwise have been, absent that contribution".500 The 
 
489 Appellate B ody Report, Canada – Dairy , para. 97.  
490 The term "producer" is defined as "[a]  person, company, or country that makes, grows, or supplies 
goods or commodities for sale ". Oxford English Dictionary online, definition of "producer" 
https://www.oed.com/view/Entry/151981?redirectedFrom=producer#eid  (accessed 22 July 2021).  
491 Article 2 of the Agreement on Agriculture provides: " This Agreement applies to  the products listed in 
Annex 1 to this Agreement, hereinafter referred to as agricultural products. " In turn, Annex 1 defines the product 
coverage of the Agreement on Agriculture.  
492 Payments -in-kind is one of the forms in which "direct subsidies" may be g ranted. The word "payments" 
denotes a transfer of economic resources from the grantor to the recipient. (Appellate Body Report , 
Canada  - Dairy , para. 87)  
493 Oxford English Dictionary online, definition of "direct" 
https://www.oed.com/view/Entry/53293?rskey=R6QbSx&result=2#eid  (accessed 22 July 2021).  
494 Previous panels and the Appellate Body have also considered the definition of the term "subsidy" in 
Article 1.1 of the SCM  Agreement to be relevant context for interpreting the term "subsidy" in the Agreement on 
Agriculture. (Panel Report, US – FSC, para. 7.150; Appellate Body Report, Canada – Dairy , para. 87)  
495 Appellate Body Report , US – Carbon Steel (India) , para. 4.8. In lin e with this definition, a "subsidy" 
within the meaning of Article  9.1(a)  "involves a transfer of economic resources from the grantor to the recipient 
for less than full consideration".  (Appellate Body Report, Canada – Dairy , para. 87)  
496 Articles 1.1(a)(1)( i) and (ii) of the SCM  Agreement.  
497 Article 1.1(a)(1)(i) lists in brackets examples of direct transfers of funds ("e.g. grants, loans, and 
equity infusion").  
498 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 616; Panel Report, India - Export 
Related Measures , para. 7.436. Since grants do not involve a reciprocal obligation on the part of the recipient, 
they would  typically  not be provided  by a private entity ac ting pursuant to commercial considerations . (Appellate 
Body Report, US – Large Civil Aircraft (2nd complaint) , para. 617; Panel Reports, India – Export Related Measures , 
para. 7.436; US – Large Civil Aircraft (2nd complaint) , para. 7.1229)  
499 Appellate Body Reports, Canada – Aircraft , paras. 154-156; Canada – Renewable 
Energy  / Canada  - Feed-in Tariff Program , para. 5.150 ; and Panel Report, US – Tax Incentives , para. 7.159.  
500 Appellate Body Report, Canada – Aircraft , para. 157. See also Appellate Body Report, EC and certain 
member States – Large Civ il Aircraft (Article 21.5 - US), para. 5.1 07; Panel Report, US – Tax Incentives , 
para. 7.159.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  marketplace provides an appropriate  basis for comparison in determining whether a "benefit" has 
been "conferred", because the trade -distorting potential of a "financial contribution" can be identified 
by determining whether the recipient has received a "financial contribution" on terms more  
favourable than those available to the recipient in the market.501 Article 14 of the SCM Agreement, 
which addresses the "Calculation of the Amount of a Subsidy in Terms of the Benefit to the Recipient" 
by an investigating authority, provides context for th e interpretation of the term "benefit" in 
Article  1.1(b).502  
7.228.   Finally, with respect to the term " contingent on export performance ", we note that 
Article  9.1(a) of the Agreement on Agriculture and Article 3.1(a) of the SCM Agreement contain 
virtually identic al wording denoting export contingency.503 We therefore see no reason to read the 
requirement of export contingency under Article 9.1(a) of the Agreement on Agriculture differently 
from that under Article 3.1(a) of the SCM Agreement.504 We note that the ordi nary meaning of the 
term "contingent" is "d ependent for its occurrence or character on or upon some prior occurrence or 
conditio n".505 Article 3.1(a) of the SCM Agreement therefore prohibits subsidies that are conditional 
upon export performance, or are dep endent for their existence on export performance.506 To 
demonstrate such a relationship of conditionality or dependence, it has to be shown that the granting 
of the subsidy is "tied to" the export performance.507 
7.229.   With these considerations in mind, we now ass ess whether India's assistance schemes are 
inconsistent with Article 9.1(a) of the Agreement on Agriculture.  
7.2.4.5.3   Production Assistance Scheme, Buffer Stock Scheme, and Marketing and 
Transportation Scheme  
7.230.   The Production Assistance Scheme, the Buffer Stock Sch eme, and the Marketing and 
Transportation Scheme share certain common features, such as the grantor and the recipient of the 
assistance, the mechanism of payment of the assistance, and the operation in conjunction with the 
MIEQs or the MAEQ. We therefore e xamine the consistency of these three Schemes with 
Article  9.1(a) jointly. In doing so, we follow the legal test articulated in paragraph 7.222  above.  
7.2.4.5.3.1   Whether the assistance is provided by a government or its agency  
7.231.   The complainants argue that the assistance under the Production Assistance Scheme, the 
Buffer Stock Scheme, and the Mark eting and Transportation Scheme is provided " by governments 
or their agencies " within the meaning of Article 9.1(a) of the Agreement on Agriculture. In particular, 
the complainants explain that the assistance under the three Schemes is provided and adminis tered 
by the DFPD, which is a government agency that is part of the Ministry of Consumer Affairs, Food 
and Public Distribution.508 Furthermore, Guatemala points out that the introductory paragraphs of 
the various instruments implementing the measures at issue indicate that they are being notified by 
the "Central Government".509  
 
501 Appellate Body Report, Canada – Aircraft , para. 157. See also Appellate Body Report, EC and certain 
member States – Large Civil Aircraft (Article 21.5 - US), para. 5.1 07; Panel Report, US – Tax Incentives , 
para. 7.159.  
502 Appellate Body Reports, Canada – Aircraft , para. 155 and 158; Canada – Renewable Energy / Canada 
– Feed-in Tariff Program , para. 5.163.  Article 14 confirms, in particular, that the focus of the analysis is on the 
recipient, and that benefit is assessed by reference to the conditions that would exist in the market in the absence 
of the financial contribution. (Appellate Body Report, Canada – Aircraft , paras. 155 and 158)  
503 Article 9.1(a) of the Agreement on Agriculture refers to subsidies "contingent on export performance", 
while Article 3.1(a) of the SCM  Agreement refers to subsidies "contingent upon … export performance". In our 
view, the difference in the prepositions does not lead to a difference in the legal tests under the two provisions.  
504 The Appellate Body in US – Upland Cotton  and US – FSC relied on Article 3.1(a) of the SCM  Agreement 
in interpreting Articles 9.1(a) and 9.1(e) of th e Agreement on Agriculture. (Appellate Body Reports, US – Upland 
Cotton , para. 571; US – FSC, para. 141)  
505 Oxford English Dictionary online, definition of "contingent" 
https://www.oed.com/view/Entry/40248?redirectedFrom=contingent#eid  (accessed 22 July 2021).  
506 Appellate Body Report, Canada – Aircraft , para. 166.  
507 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 111.  
508 Australia's first written submission, pa ras. 290, 306, and 344; Guatemala's first written submission, 
para. 287. See also Brazil's first written submission, paras. 201, 206, and 211.  
509 Guatemala's first written submission, para. 287.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.232.   India does not submit any arguments in response to the c omplainants' assertions.  
7.233.   We note that preambles to the legal instruments implementing the Production Assistance, 
the Buffer Stock, and the Marketing and Transportation Schemes state that the Schemes are notified 
by the Central Government.510 The assistance under the Schemes is administered, or 
operationalised511, by the DFPD. In particular, sugar mills are required to submit claims to the DFPD 
to receive the subsidy.512 The DFPD is part of India's Ministry of Consumer Affairs, Food and Public 
Distribution, whi ch, in turn, is part of the Central Government.513 We therefore understand that the 
assistance under the Production Assistance, the Buffer Stock, and the Marketing and Transportation 
Schemes is provided by the Central Government through a specialized agency , the DFPD.  
7.234.   We therefore conclude that the assistance under the Production Assistance, the Buffer Stock, 
and the Marketing and Transportation Schemes is provided " by governments or their agencies " 
within the meaning of Article 9.1(a) of the Agreement on Ag riculture.  
7.2.4.5.3.2   Whether assistance 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 " 
7.235.   The complainants argue that, under the Production Assistance, B uffer Stock, and Marketing 
and Transportation Schemes, assistance is provided to entities that qualify as recipients recognized 
under Article 9.1(a).514 Brazil and Australia assert that assistance is paid to sugar mills, which qualify 
as "producers of an ag ricultural product", or, alternatively, as "an industry", "a cooperative or other 
association of such producers", or "firms".515 Guatemala submits that assistance is provided to sugar 
mills, which are "producers of an agricultural product".516 Guatemala also  argues that sugar mills 
could be considered "an industry".517 
7.236.   India does not submit any arguments in response to the complainants' allegations in this 
respect.518  
7.237.   To begin with, we agree with the complainants that the recipient s of the assistance under 
the three Schemes are sugar mills.519 Even though the assistance is credited directly to the bank 
accounts of sugarcane farmers, the recipients of the subsidy for the purpose of analysis under 
Article  9.1(a) are sugar mills. This is because the legal instrumen ts that implement these schemes 
provide that: (i)  sugar mills are eligible for assistance520; (ii) it is sugar mills that must satisfy the 
eligibility criteria for assistance521; (iii) the assistance is paid on a mill -specific basis522; and (iv) 
sugar mills m ust present utilization certificates to the DFPD to demonstrate that the assistance was 
 
510 Notification of 5 October 2018, (Exhibit  JE-74), preamble; Notification of 31 July 2019, (Exhibit  JE-77), 
preamble; Notification of 12 September 2019, (Exhibit  JE-114), preamble.  
511 See Notification of 5 October 2018, (Exhibit  JE-74), paras. 5 -6; Notification of 31 July 2019, 
(Exhibit  JE-77), paras. 7 -8; Notificat ion of 12 September 2019, (Exhibit  JE-114), paras. 6 -11. 
512 Notification of 5 October 2018, (Exhibit  JE-74), para. 3(vi);  Notification of 31 July 2019, 
(Exhibit  JE-77), para. 9(b); Notification of 12 September 2019, (Exhibit  JE-114), para. 4.  
513 DFPD Functio ns, (Exhibit  AUS-45). 
514 Australia's first written submission, para. 295; Guatemala's first written submission, para. 288.  
515 Australia's first written submission, para. 296; response to Panel question No. 54; Brazil's first written 
submission, para. 201 and fn 252 thereto and fn 214 to para. 168; response to Panel question  No. 54.  
516 Guatemala's first written submission, para. 2 88; response to Panel question  No. 54.  
517 Guatemala's response to Panel question  No. 54.  
518 In response to a question from the Panel, India simply stated that, t o establish the existence of a 
subsidy under Article 9.1 (a), each of th e requirements  of that provision  must be met.  (India's response to Panel 
question  No. 54)  
519 See complainants' response to Panel question No. 9.  
520 E.g. Notification of 9 May 2018, ( Exhibit  JE-75), implements "the Scheme for Assistance to Sugar Mills " 
in the 2017-18 sugar season ; Notification of 31 July 2019, ( Exhibit  JE-77), stipulates that "[t]he funds [are] to 
be provided to sugar mills" ; Notification of 12 September 2019, ( Exhibit  JE-114), implements "the Scheme for 
providing assistance to sugar mills  for expenses on marketing [and transportation] costs". (underlining added)  
521 See e.g. Notification of 9 May 2018, (Exhibit  JE-75), para. 2; Notification of 31 July 2019, 
(Exhibit  JE-77), para. 4; Notification of 12 September 2019, (Exhibit  JE-114), para. 2.  
522 See e.g. Notification of 9 May 2018, (Exhibit  JE-75), paras. 3 and 4; Notification of 31 July 2019, 
(Exhibit  JE-77), para. 4; Notification of 12 September 2019, (Exhibit  JE-114), paras. 2 and 6.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  used in accordance with its purpose (i.e. to pay arrears owed to sugarcane farmers).523 Furthermore, 
if a sugar mill does not have any sugarcane arrears, the assistance is credited to the mill's account.524 
In our view, the fact that, in the case of sugar mills that owe sugarcane dues, the assistance is 
credited directly into farmers' accounts does not make them the recipients of assistance. Rather, it 
simply reflects the purpose for which the assistance is provided  to sugar mills , i.e. to alleviate the 
mills from financial obligation towards the farmers.  
7.238.   We recall that, under Article 9.1(a), a subsidy must be provided to one of the following 
categories of recipients: a firm, an industry, producers of an agricultural product, a cooperative or 
other association of such producers, or to a marketing board. We further recall our understanding 
that "producers of an agricultural product" are entities that "make" or "grow" agricultural products 
within the meaning of the Agreement on Agriculture.  
7.239.   As explained above, pursuant to the terms of the Production Assistance,  the Buffer Stock, 
and the Marketing and Transportation Schemes, the recipients of assistance are sugar mills.525 Sugar 
mills produce sugar from sugarcane. Sugar falls under Chapter 17 of the Harmonized System (HS), 
titled "Sugars and sugar confe ctionery"526, and is therefore an agricultural product that falls within 
the scope of Annex 1 of the Agreement on Agriculture.527  
7.240.   We therefore conclude that, under the Production Assistance, the Buffer Stock, and the 
Marketing and Transportation Schemes, as sistance is provided to "producers of an agricultural 
product" within the meaning of Article 9.1(a) of the Agreement on Agriculture.528  
7.2.4.5.3.3   Whether the assistance is a "direct subsid [y]" 
7.241.   The complainants submit that  the assistance under the Production Assistan ce Scheme, the 
Buffer Stock Scheme, and the Marketing and Transportation Scheme constitutes  a "direct subsid[ y], 
including payments in kind" within the meaning of Article 9.1(a) of the Agreement on Agriculture. 
In particular, Brazil argues that, under the three Schemes, there is a transfer of financial resources 
in the form of money from the Central Government to sugar mills, which is made without full 
consideration and therefore constitutes a "direct subsid [y]" within the meaning of Article 9.1(a) of 
the A greement on Agriculture.529 Australia contends that the assistance is paid by the Central 
Government, on behalf of eligible sugar mills, into sugarcane farmers' bank accounts , and any 
remaining funds are credited  directly to the mill accounts .530 For its par t, Guatemala submits that, 
under the three Schemes, "the monies provided by India to sugar mills constitute a transfer of 
economic resources from the Indian Government (the grantor) to sugar mills (the recipient)."531 In 
the complainants' view, the assistan ce under the three Schemes is in the form of a grant, which 
confers a benefit on sugar mills, making them better off than they would have been in the absence 
of the assistance.532 In response to India's argument that an actual disbursement of funds is requi red 
to demonstrate the existence of a subsidy, the complainants argue that the commitment to disburse 
 
523 See e.g. Notification of 9 May 2018, (Exhibit  JE-75), para.  4; Notification of 31 July 2019, 
(Exhibit  JE-77), para. 10; Notification of 12 September 2019, (Exhibit  JE-114), para. 6.  
524 Notification of 2 December 2015, (Exhibit  JE-76), para. 2(vi); Notification of 9 May 2018, 
(Exhibit  JE-75), para. 3(iv); Notificati on of 5 October 2018, (Exhibit  JE-74), para. 3(iv); Notification of 
31 July 2019, (Exhibit  JE-77), para. 9(a); Notification of 15 June 2018, (Exhibit  JE-78), para. 9(a); Notification 
of 12 September 2019, (Exhibit  JE-114), para. 5(ii).  
525 See para. 7.237  above.  
526 World Customs Organization, HS Nomenclature 2017 edition, (Exhibit  JE-118), Chapter 17.  
527 Annex 1 of the Agreement on Agriculture, titled "Product Coverage", r efers, inter alia , to Chapters 1 -24 
of the HS. (See para. 7.224  and fn 491 thereto, above)  
528 The complainants argue that sugar mills can also be described as "an industry ", or, depending on the 
form of their organizati on, as cooperatives or firms.  For our purposes, it suffices to conclude that sugar mills fall 
under one of the categories or recipients listed in Article 9.1(a).   
529 Brazil's first written submission, paras. 201, 206, 211, 215, 220, and 226.  
530 Australia's first written submission, para. 292; opening statement at the first substantive meeting of 
the Panel, para. 59.  
531 Guatemala's first written submission, para. 283.  
532 Brazil's second written submission, para. 89 and response to Panel question  No. 55; Austr alia's first 
written submission, paras. 293 -294 and second written submission, para. 110; Guatemala's second written 
submission, paras. 73 -78, response to Panel question  No. 55.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  a subsidy is sufficient for there to be "the provision" of a subsidy within the meaning of Article 9.1(a) 
of the Agreement on Agriculture.533 
7.242.   In response, India argues that the complainants failed to demonstrate the existence of a 
financial contribution and benefit  with respect to the three Schemes .534 First, India explains that "the 
complainants have not met their burden to demonstrate [the] 'ma king' of [a] financial contribution 
such that they can show [that] there is a financial contribution".535 In India's view, "[t]he use of the 
operative term 'is' in Article 1.1(a)(1) [of the SCM Agreement] indicates that a subsidy can be said 
to 'exist' only  where the government has actually  made a 'financial contribution' under the challenged 
measures."536 Thus, according to India, actual transfers of funds are required for a subsidy to 
exist.537 Second,  India submits that the complainants failed to identify a ny benchmark in a relevant 
market to demonstrate the existence of a benefit , and merely presumed that a benefit exists.538 
India disagrees with the complainants ' assertion that grants, by their very nature, confer a benefit 
on a recipient .539 In India's view , "[t] here is no such universal principle that grants always  and 
automatically result in conferring a benefit on their recipient, without any further need to undertake 
an assessment as required under the SCM Agreement. "540 
7.243.   We recall that, to fall under Arti cle 9.1(a) of the Agreement on Agriculture, a measure must 
be "a direct subsid [y], including payments in kind". There are two elements in this enquiry: first, 
the measure must be a "subsid [y]", and second, the subsidy must be "direct".  The parties agree541, 
and we share their view, that Article 1.1 of the SCM Agreement provides relevant context for 
interpreting the term "subsid [y]" in Article 9.1 of  the Agreement on Agriculture.542 Pursuant to Article 
1.1 of the SCM Agreement, a subsidy shall be deemed to exist if there is a financial contribution by 
a government or any public body and a benefit is thereby conferred.543 India argues that the 
complainants have failed to demonstrate th e existence of both financial contribution and benefit.  
7.244.   In our assessment, we first examine whether the assistance under the Production Assistance, 
the Buffer Stock, and the Marketing and Transportation Schemes is a "subsidy", i.e. whether there 
is a fina ncial contribution that confers a "benefit". If we find that these Schemes constitute subsidies, 
we will then assess whether such subsidies are "direct" within the meaning of Article 9.1(a) of the 
Agreement on Agriculture.  
Whether there is "a financial contribution"  
7.245.   The complainants assert that, under the Production Assistance, the Buffer Stock, and the 
Marketing and Transportation Schemes, there is a financial contribution in the form of a direct 
transfer of funds within the meaning of Article  1.1(a)(1)(i) of the SCM Agreement .544 More 
specifically, the complainants argue that sugar mills receive a financial contribution in the form of a 
 
533 Brazil's second written submission, paras. 92 -97; Australia's second written  submission, 
paras.  104-107; Guatemala's second written submission, paras. 61 -72. Costa Rica, Japan,  and the United States 
support the complainants' view. ( Costa Rica's third -party submission, paras. 17 –25; Japan's third -party 
statement, paras. 7 –9; United  States' third -party submission, paras. 47 –54) 
534 India's first written submission, para. 110 and response to Panel question  No. 39.  
535 India's first written submission, para. 107. (emphasis and underlining original)  
536 India's first written submission, para . 107. (emphasis original)  
537 India's second written submission, paras. 67 -89. 
538 India's first written submission, para. 112; second written submission, para. 94.  
539 India's second written submission, para. 92 (referring to Australia's first written submissi on, para. 269 
and Guatemala's opening statement at the first substantive meeting of the Panel, para. 4.18).  
540 India's second written submission, para. 93. (emphasis original) In this regard, India submits that the 
assessment of benefit in the context of a marketplace is necessary. According to India, while certain prior panels 
have observed that grants place a re cipient in a better position, this is not a priori  true for all cases. 
(Ibid.  para. 94 (referring to Appellate Body Report, Canada – Aircraft , para. 157))  
541 Brazil's first written submission, para. 191; Australia's first written submission, para. 266; Guat emala's 
first written submission, para. 263; India's first written submission, para. 105  
542 We note that, in previous disputes, the definition of the term "subsidy" in Article 1.1 of the 
SCM Agreement was also considered to be relevant context for interpreting the term "subsidy" in the Agreement 
on Agriculture. (Panel Report, US – FSC, para. 7.1 50; Appellate Body Reports, Canada – Dairy , para. 87; 
US - Upland Cotton , para. 571)  
543 Appellate Body Report , US – Carbon Steel (India) , para. 4.8.  
544 Australia's first written submission, para. 394; Guatemala's  first written submission, para. 314.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  grant.545 The complainants further submit that India's argument that evidence of actual 
disbursements is requi red to demonstrate the existence of a "financial contribution" within the 
meaning of Article  1.1(a)(1) of the SCM Agreement and, therefore, "direct subsidies" under 
Article  9.1(a) of the Agreement on Agriculture, is not supported by the text of either Agre ement.  
According to the complainants, a promise by a government to make payments under a scheme, 
combined  with a budgetary allocation towards the scheme, are actions by which th e government 
makes funds available to eligible recipients.546 In support of thei r position, the complainants note 
that, pursuant to Article 9.2(a)(i) of the Agreement on Agriculture, the existence of a subsidy may 
be demonstra ted on the basis  of an allocation of funds alone .547 They also point out that, pursuant 
to Article 1.1(a)(1)(i)  of the SCM Agreement, a "financial contribution" may be made through 
"potential direct transfers of funds ".548 The complainants also argue that, in any event, the record 
in these proceedings contains evidence showing that the Indian government has made 
disbursements pursuant to the challenged export subsidy schemes.549 
7.246.   India argues that , to establish the existence of an export subsidy under Article 9.1 of the 
Agreement on Agriculture , it is necessary to demonstrate that an actual disbursement of funds took 
place.550 India stresses that the  use of the operative term "is" in Article 1.1(a)(1) of the 
SCM Agreement indicates that a subsidy can  only be said to exist where the government "has 
actually  made " a financial contribution .551 
7.247.   As for the third parties, Costa Rica , Japan,  and the United States disagree with India's 
argument that Article 1.1(a)(1) of the SCM Agreement requires a demonstration that the financial 
contribution has actually been made to establish the existence of a subsidy.552  In this regard, the 
United States notes that, pursuant to Article 9.2(a)(i) of the Agreement on Agriculture, export 
subsidy commitments are measured based on allocation or incurrence. Furthermore, the U nites 
States points out that demonstrating the existence of a subsidy under the SCM Agreement does not 
require showing that a direct transfer of funds has been made to, or received by, the recipient.553 
The United States submits that it "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 ."554 Finally, the United 
States notes that Members can challenge subsidies under the SCM Agreement on an "as such" 
basis.555  
7.248.   We first a ddress India's interpretative argument that it is necessary to provide evidence of 
an actual disbursement of funds to establish the existence of a financial contribution. We note that 
Article 9.1(a) of the Agreement on Agriculture concerns "the provision  … of direct subsidies " by 
governments or their agencies.  The verb "provide" is  defined, inter alia , as "to supply (something) 
for use" or " to make available" .556 This definition suggests that something is "provided" not only 
when it has been supplied or dis tributed to the recipient, but also when it has simply been made 
available.  
7.249.   Turning to the immediate context of Article 9.1(a), we note that Article  9.2(a)(i) of the 
Agreement on Agriculture stipulates  that Members may have expressed their scheduled expor t 
subsidy reduction commitments in terms of budgetary outlay  reduction commitments , and 
recogni zes that compliance with these commitments in any given year is measurable on the basis 
 
545 Brazil's first written submission, paras. 201, 206, 211, 215 -216, 220 -221, and 223 -224; 
Australia's  first written submission, paras. 294, 307 -308, and 346; Guatemala's first written submission, 
para. 314. 
546 Australia's second written submission, para. 105; Guat emala's second written submission, para. 67.  
547 Australia's second written submission, para. 106.  
548 Australia's second written submission, para. 107; Guatemala's second written submission, para. 69.  
549 Notes on Demands for Grants, 2020 -2021, (Exhibit JE-142), Notes 10 and 13; Dhampur Sugar Mills 
Limited Annual Report 2019 -20, (Exhibit JE -149), p. 161 , sub-note 1(i) . 
550 India's second written submission, paras. 67 and 72 -73. 
551 India's first written submission, para. 107. (emphasis original)  
552 Costa Rica' s third -party submission, paras. 17 -25; Japan's third -party statement paras. 7 -9; United 
States' third -party submission, para. 48.  
553 United States' third -party submission, paras. 49 -50.  
554 United States' third -party submission, para. 51 (referring to Panel  Report, India – Export Related 
Measures ). 
555 United States' third -party submission, para. 53.  
556 Oxford English Dictionary online, definition of "provide" 
https://www.oed.com/view/Entry/153448?rskey=sAyZXB&result=2&isAdvanced=false#eid  (accessed 
22 July 2021).  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  of budgetary outlays "allocated or incurred" . This provision demonstrates  that export subsidy 
commitments may be measured based on an allocation of budgetary outlays. Accordingly, in our 
view, the existence of a subsidy for purposes of Article  9.1(a) may be demonstrated based on 
allocation of funds towards that subsidy and does  not necessarily require a demonstration of an 
actual disbursement of such funds.  
7.250.   India underscores the use of the  verb "is" in Article 1.1(a)(1) of the SCM Agreement . We 
note that,  pursuant to Article 1.1(a)(1)(i), there " is a financial contribution"557, inter alia , where a 
"government practice" "involves a direct transfer of funds" or "potential direct transfers of funds", 
such as loan guarantees. Thus, a financial contribution is deemed to exist if a government practice 
is shown to "involve[]" either a direct transfer of funds, or potential direct transfers of funds. The 
verb "involve" is defined as "t o include; to contain, imply " or to "entail".558 Accordingly, a financial 
contribution may be found to exist where a government  practice entails or implies a direct transfer 
of funds, which, in our view, does not necessarily require an actual disbursement of funds. Indeed, 
had the drafters intended to indicate that an actual direct transfer of funds is necessary for a financial 
contribution to exist, different wording (e.g. "a government practice consists of an actual direct 
transfer of funds") would have been used in Article 1.1(a)(1)(i).559 
7.251.   Furthermore, Article  1.1(a)(1)(i) provides that a financial contribution may take the form of 
"potential direct transfers of funds". This provision thus contemplates that a financial contribution 
may be made through possible transfers  of funds in the future. This context further confirms that, 
contrary to India's arguments, the demonstration of an actual disbursement of funds is not necessary 
to establish the existence of a financial contribution under Article 1.1(a)(1) of the SCM Agreement . 
Rather, the existence of a financial contribution may be established based on the text of a legal 
instrume nt implementing a subsidy, which commits a government to provide a financial contribution 
to a recipient.560 This view is also supported by findings made in previous disputes.561 
7.252.   Each of the legal instruments implementing the three Schemes envisages a provision of 
funds from the Central Government to sugar mills.562 Furthermore, the complainants have provided 
evidence showing that the Central Government made budget ary allocations  and actual 
disbursements under  the three Schemes.563 In our view, this evidence clearly demonstrates that the 
Production Assistance, the Buffer Stock, and the Marketing and Transportation Schemes "involve [] 
 
557 Emphasis added.  
558 Oxford English Dictionary online, definition of "involve" 
https://www.oed.com/view/Entry/99206?redirectedFrom=involve#eid  (accessed 22 July  2021).  
559 In the same vein, the panel in Brazil - Aircraft  stated:  
[A]ccording to Article 1:1(i) a subsidy exists if a government practice involves a direct tran sfer of 
funds or a potential direct transfer of funds and not only when a government actually effectuates 
such a transfer or potential transfer (otherwise the text of (i) would read: "a government directly 
transfers funds … or engages in potential direct transfers of funds or liabilities "). 
(Panel Report, Brazil – Aircraft , para. 7.13)  
560 We agree with the United States ' observation that, if India's arguments were accepted, a complainant 
would be prevented from demonstrating the existence of a subsid y because it did not have access to specific 
evidence of payment information, which would shield respondents from potential liability under the WTO 
Agreements and incentivize non -transparency. (United States third -party submission, para. 50)  
561 For example,  the Appellate Body in US – Large Civil Aircraft (2nd complaint)  stated that a "direct transfer 
of funds" refers to "conduct on the part of the government by which money, financial resources, and/or financial 
claims are made available to a recipient . (Appe llate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 
614 (emphasis added) ) Furthermore, the panel in  EC and certain member States – Large Civil Aircraft 
(Article  21.5 – US) considered that the fact that some disbursements under a subsidy programme were yet to 
be made, did not  "preclude the entirety of the envisaged … measures from being characterised as a direct transfer 
of funds". (Panel Report EC and certain member States – Large Civil Aircraft (Article 21.5 – US), para. 6.290)  
562 For example, the Notification implementing the Marketing and Transportation Scheme states that 
"[s]ugar mills … will be eligible for assistance". (Notification of 12 September 2019, (Exhibit  JE-114), para. 2) 
Likewise, legal instruments implementing the Production Assistance Scheme state "[m]ills … will be eligible for 
assistance" and that "sugar mills shall be entitled for the production subsidy". (Notification of 9 May 2018, 
(Exhibit  JE-75), para.  2; Notification of 2 December 2015, (Exhibit  JE-76), para. 2(i); Notification of 5 October 
2018, (Exhibit  JE-74), para. 2) Legal instruments implementing the Buffer Stock Scheme state that "funds [are] 
to be provided to the sugar mills". (Notification of 31 July 2019, (Exhibit  JE-77), para. 1; Notification of 15 June 
2018, (Exhibit  JE-78), para. 1)  
563 Notes on Demands for Grants, 2018 -2019, (Exhibit AUS -48); Notes on Demands for Grants, 
2019-2020, (Exhibit  JE-121);  Notes on Demands for Grants, 2020 -2021, (Exhibit JE -142); Dhampur Sugar 
Mills Limited Annual Report 2019 -2020, (Exhibit JE -149); Balrampur Chini Mills Limited Annual Report 
2019-2020, (Exhibit JE -157); Avadh Sugar & Energy Limited Annual Report 2019 -2020, (Exhibit JE -158).  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  a direct transfer of funds " within the meaning of Art icle 1.1(a)(1)(i) of the SCM Agreement. As 
explained below, the funds are provided to sugar mills without an obligation to provide anything in  
return  and therefore constitute grants.564 
7.253.   In light of the above, we conclude that, under the Production Assistanc e, the Buffer Stock, 
and the Marketing and Transportation Schemes, the Central Government provides a financial 
contribution to sugar mills in the form of grants within the meaning of Article 1.1(a)(1)(i) of 
the SCM Agreement.  
Whether  the financial contributions confer a "benefit"  
7.254.   We now examine whether the complainants have demonstrated the existence of a "benefit"  
within the meaning of Article 1.1(b) of the SCM Agreement.  
7.255.   The complainants point out that a grant automatically leaves the r ecipient better off than it 
would have been absent the grant.565 The complainants submit that the financial contributions under 
the Production Assistance,  the Buffer Stock, and the Marketing and Transportation Schemes are 
grants because sugar mills are not required to provide anything in return to the Central 
Government.566 In the complainants' view, by receiving these gratuitous contributions, sugar mills 
are automatically p laced in a better position  than they would have otherwise been absent the 
grant.567  
7.256.   India argues that  grants do not " always  and automatically  result in conferring a benefit on 
their recipient"568 and that the complainants failed to identify any benchmark in a relevant market 
to demonstrate the existence of a benefit and merely presumed that  a benefit exists .569 According 
to India, an assessment of "benefit" must be made in the context of a marketplace.570 India points 
out that, on the one hand, the complainants claim that India's marketplace is heavily distorted, yet, 
on the other hand, they d o not identify an undistorted market for performing a comparison.571 
Furthermore, India submits that there is no benefit to sugar mills because the cost of production of 
sugar is very high, which makes sugar mills uncompetitive in the export market.572 
7.257.   Under  Article 1.1(b) of the SCM Agreement, a financial contribution by a government is a 
"subsidy" if "a benefit is thereby conferred". A benefit within the meaning of Article  1.1(b) is an 
"advantage"573 to the recipient of the financial contribution.  The term " benefit", as used in 
Article  1.1(b), "implies some kind of comparison" to determine whether "the 'financial contribution' 
makes the recipient 'better off' than it would otherwise have been, absent that contribution".574 The 
marketplace provides an appropriate basis for comparison in determining whether a "benefit" has 
been "conferred", because the trade -distorting potential of a "financial contribution" can be identified 
by determining whether the recipient has received a  "financial contribution" on terms more 
favourable than those available to the recipient in the market.575 
 
564 See paras. 7.258 -7.261  below . 
565 Brazil's opening statement at the  second substantive meeting of the Panel, para. 58; Australia's second 
written submission, para. 110; Guatemala's second written submission, paras. 75 -77. 
566 Australia's second written submission, para. 110; Guatemala's second written submission, para. 77.  
567 Brazil's opening statement at the second substantive meeting of the Panel, paras. 59 -60; Australia's 
second written submission, para. 110; Guatemala's second written submission, para. 77.  
568 India's second written submission, para.  93. (emphasis original)  
569 India's first written submission, para. 112; second written submission, para. 94.  
570 India's second written submission, para. 94.  
571 India's second written submission, para. 96.  
572 India's second written submission, para. 97.  
573 Appellate Body Reports, Canada – Aircraft , paras. 154-156; Canada – Renewable 
Energy  / Canada  - Feed-in Tariff Program , para. 5.150 ; and Panel Report, US – Tax Incentives , para. 7.159.  
574 Appellate Body Report, Canada – Aircraft , para. 157. See also Appellate Body Report, EC and certain 
member States – Large Civil Aircraft (Article 21.5 - US), para. 5.1 07; Panel Report, US – Tax Incentives , 
para. 7.159.  
575 Appellate Body Report, Canada – Aircraft , para. 157. See also Appellate Body Report, EC and certain 
member States – Large Civil Aircraft (Article 21.5 - US), para. 5.1 07; and Panel Report, US – Tax Incentives , 
para. 7.159. Article  14 of the SCM  Agreement confirms that the focus of the analysis is on the recipient, and that 
benefit is assessed by reference to th e conditions that would exist in the market in the absence of the financial 
contribution . (Appellate Body Report, Canada – Aircraft , paras. 155 and 158)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.258.   The type of financial contribution relevant to our examination of the three Schemes at issue 
is a direct transfer of funds in the form of a grant with in the meaning of Article 1.1(a)(1)(i) of the 
SCM Agreement.576 Grants are transactions in which money or money's worth is given to a recipient, 
normally without an obligation or expectation that anything will be provided to the grantor in 
return.577 Since g rants do not involve a reciprocal obligation on the part of the recipient, they would 
not be made by a private entity acting pursuant to commercial considerations.578 By their nature, 
grants confer a benefit to the recipient because they place the recipient  in a better position than the 
recipient otherwise would have been in the marketplace.579 
7.259.   India asserts that grants do not " always  and automatically  result in conferring a benefit on 
their recipient".580 Rather, according to India, "an assessment of benefit in the context of a 
marketplace is necessary ".581 We agree with India that an assessment of whether a benefit has been 
conferred implies an examination of whether the financial contribution makes the re cipient better 
off than it would otherwise have been , and that a marketplace provides an appropriate basis for 
such a comparison.582 However, in the case of grants, which essentially are gifts from a government, 
such an inquiry is a simple one. When given t o an entity operating in the marketplace, a grant 
automatically makes the recipient " better off " than it would otherwise have been  because it gives 
that recipient greater resources than it had before, to allow it to pursue its commercial aims, and 
the gran t does not entail  any specific  reciprocal obligation on the part of the recipient .  
7.260.   Referring to the panels' findings in Canada – Renewable Energy / Canada -Feed-in Tariff 
Program , India argues that the complainants have not identified the relevant market f or performing 
a comparison on whether a benefit has been conferred and thus failed to demonstrate the existence 
of a benefit.583 In this regard, we note that, while for some types of financial contribution an 
elaborate analysis and definition of the relevan t market would be appropriate584, this is not the case 
for all types of financial contribution. In the case of grants, the market, however defined, does not 
make such gifts.585 We therefore disagree with India that the complainants have failed to properly 
identify a marketplace for purposes of the "benefit" analysis.586 
7.261.   Under the Production Assistance, Buffer Stock, and Marketing and Transportation Schemes, 
sugar mills receive assistance from the Central Government, which is aimed at enabling them to 
clear the ir sugarcane dues to farmers. Although, pursuant to the payment arrangements under the 
three Schemes, the assistance is credited by the Central Government directly into the accounts of 
sugarcane farmers on behalf of sugar mills, we consider that the benefi t accrues to sugar mills and 
not to farmers.587 Such assistance is gratuitous, and thus constitutes grants. In our view, by 
 
576 Article 1.1(a)(1)(i) provides an illustrative list of transactions that would constitute direct trans fers of 
funds ("e.g. grants, loans, and equity infusion"). See Appellate Body Reports, US – Large Civil Aircraft 
(2nd complaint) , para. 615; Japan – DRAMs (Korea) , para. 251; Panel Report, India – Export Related Measures , 
para. 7.427.  
577 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 616; Panel Report, India - Export 
Related Measures , para. 7.436.  
578 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 617; Panel Reports, 
India - Export Related M easures , para. 7.436; US – Large Civil Aircraft (2nd complaint) , para. 7.1229.  
579 Panel Reports, US – Upland Cotton , paras. 7.1116 and 7.1118; EC and certain member States – Large 
Civil Aircraft , para. 7.1501; and US – Large Civil Aircraft (2nd complaint) , paras. 7.1228 -7.1229 and 7.1362.  
580 India's second written submission, para.  93. (emphasis original)  
581 India's second written submission, para.  94. (emphasis original)  
582 See para. 7.256  above.  
583 India's second written submission, paras. 95 -96 (referring to Panel Reports, Canada – Renewable 
Energy / Canada -Feed-in Tariff Program , paras. 7.272 -7.274).  India explains that "[t] he complainants ' claim that 
India' s sugar and sugarcane market is heavily distorted requires them to identify an undistorted market separate 
from the market in which the transaction between the government and sugar mills is executed ." (Ibid. para. 96)  
584 For example, this may be the case for financial contributions in the form of provision or purchase of 
goods under Article 1.1(a)(1)(iii) of the SCM  Agreement, where it is necessary to assess the adequacy of 
remuneration,  as was the case in  Canada – Renewable E nergy / Canada -Feed-in Tariff Program . 
585 See also Panel Report, India – Export Related Measures , para. 7.466.  
586 We further  note India's argument t hat there is no benefit to sugar mills because the cost of production 
of sugar is very high, which makes sugar mills uncompetitive in the export market . (India's second written 
submission, para. 97) India's assertion that its sugar mills would be uncompetitive in the absence of these grants 
further reinforces our view that the sugar mills incur a benefit  from receiving these grants. Assuming India's 
assertion to be true, we do not see how India could consider that the financial resources being provided without 
consideration, which in India's view increases the recipients' competitiveness, would not confer a "b enefit" within 
the meaning of either the SCM  Agreement or the Agreement on Agriculture.  
587 See para. 7.237  above.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  receiving such grants, sugar mills are automatically placed in a better position than they would have 
been absent the grants, and thu s receive a benefit.  
7.262.   In light of the above, we conclude that the financial contributions under the Production 
Assistance, the Buffer Stock, and the Marketing and Transportation Schemes  confer a benefit on 
sugar mills within the meaning of Article 1.1(b) of  the SCM Agreement. Since these Schemes confer 
a financial contribution and a benefit within the meaning of the SCM Agreement, we further conclude 
that they constitute "subsidies" within the meaning of Article 9.1 of the Agreement on Agriculture.  
Whether the subsidies are  "direct "  
7.263.   The complainants submit that the subsidies under the Production Assistance, Buffer Stock, 
and Marketing and Transportation Schemes are "direct" within the meaning of Article 9.1(a) of the 
Agreement on Agriculture because they ar e provided to sugar mills by the Indian Government in a 
straightforward and immediate manner.588 In this regard, Australia and Guatemala explain that, 
under the Production Assistance, Buffer Stock, and the Marketing and Transportation Schemes, 
monies are deposited by the Indian Government "directly" into bank accounts opened for the purpose 
of receiv ing the subsidies.589 
7.264.   India does not comment on the complainants' arguments regarding this issue.  
7.265.   As noted above590, in our view, the term "direct" in Article 9.1(a) indicates that the subsidy 
must be provided from the grantor to the recipient in a straight forward and immediate manner.  
7.266.   Turning to the requirements of the three Schemes, we recall that , to receive a subsidy, sugar 
mills are required to open a separate no -lien account in a bank and furnish to the bank the list of 
farmers and their bank account d etails, as well as information about the extent of sugarcane price 
dues payable to the farmers for the relevant sugar season. The bank credits the assistance to the 
farmers' accounts on behalf of sugar mills, and any subsequent balance is credited into the  sugar 
mills' accounts.591 As explained above592, although the assistance is credited directly into the 
accounts of farmers on behalf of sugar mills, we consider sugar mills to be the recipients of the 
subsidies. Th us, the  modalities of disbursement of the s ubsidies demonstrate that the subsidies are 
provided by the Central Government to sugar mills in a straightforward and immediate manner.  
7.267.   We therefore conclude that the subsidies under the Production Assistance, Buffer Stock, and 
Marketing and Transportatio n Schemes  are "direct" within the meaning of Article 9.1(a) of the 
Agreement on Agriculture .593 
7.2.4.5.3.4   Whether the subsidies are "contingent on export performance"  
7.268.   We have found that the provision of assistance to sugar mills under the Production 
Assistance, the B uffer Stock, and the Marketing and Transportation Schemes constitute direct 
subsidies within the meaning of Article 9.1(a) of the Agreement on Agriculture. We now examine 
whether these subsidies are "contingent on export performance".  
 
588 Australia's first written submiss ion, para. 292; Guatemala's first written submission, para. 285.  
589 Australia's first written submission, para. 292; Guatemala's first written submission, para. 285. For its 
part, Brazil asserts that "[b]ecause the payment is made by the Central Government without full consideration, 
it constitutes a 'direct subsidy', within the meaning of Article 9.1(a) of the Agreement on Agriculture." 
(Brazil's  first written submission, para. 201)  
590 See para. 7.225  above.  
591 Notification of 2 December 2015, (Exhibit  JE-76), para. 2(v) -(vi); Notification of 9 May 2018, 
(Exhibit  JE-75), para. 3(iv) -(v); Notification of 5 October 2018, (Exhibit  JE-74), para. 3(iv); Notifi cation of 31 
July 2019, (Exhibit  JE-77), para. 9(a); Notification of 15 June 2018, (Exhibit  JE-78), para. 9(a); Notification of 
12 September 2019, (Exhibit  JE-114), para. 5(ii).  
592 See para. 7.237  above.  
593 We wish to underline that our findings reflect the characteristics of the subsidies at issue in these 
proceedings, in particular the fact that, under these subsidies, assistance is provided from the Central 
Government to sugar mills without an intermediar y. By making these findings, we are not taking any position on 
whether a subsidy granted by a government or its agency through an intermediary would constitute a "direct" 
subsidy within the meaning of Article 9.1(a) of the Agreement on Agriculture.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.269.   The complainants claim that the subsidies under the three Schemes  are "contingent on 
export performance"  under Article 9.1(a) of the Agreement on Agriculture . With respect to the 
Production Assistance and Buffer Stock Schemes, the complainants assert that the p rovision of 
assistance under those Schemes is conditioned upon the sugar mills ' compliance with export 
allocations under MIEQ orders.594 Similarly, the complainants argue that the provision of assistance 
under the Marketing and Transportation Scheme is cond itioned upon sugar mills exporting at least 
50% of their MAEQ allocation.595 
7.270.   India does not submit any specific arguments in response to the complainants' allegations 
of export contingency.  
7.271.   We recall that, due to the textual similarity between the two prov isions, the requirement of 
export contingency has the same meaning under Article 9.1(a) of the Agreement on Agriculture and 
Article 3.1(a) of the SCM Agreement .596 Export contingency in the context of Article  3.1(a) of the 
SCM Agreement has been interpreted  to refer to  subsidies that are conditional upon export 
performance, or are dependent for their existence on export performance.597 To demonstrate such 
a relationship of conditionality or dependence, it has to be shown that the granting of a subsidy is 
"tied to" the export performance.598 We find this interpretation convincing and consider it appropriate 
to rely on it in applying Article 9.1(a) of the Agreement on Agriculture.  
7.272.   With respect to the Production Assistance Scheme, we recall that assistance under this 
Scheme is provided to sugar mills on a seasonal basis "to offset the cost of cane and facilitate timely 
payment of cane price dues of farmers" for the relevant sugar season.599 Pursuant to one of the 
eligibility criteria under the Sche me, to receive a subsidy  in the 2017 -18 and 2018 -19 sugar seasons,  
sugar mill s "should have fully complied with all the orders/directives of the [DFPD]  to the sugar 
mills"  for the relevant sugar season .600 In this regard, we recall that the MIEQs are orders  issued by 
the DFPD pursuant to Section 3 of the Essential Commodities Act  and Clause 5 of the Sugar (Control) 
Order .601 Consequently, to be eligible for a subsidy under the Production Assistance Scheme, sugar 
mills must have fully complied with their indiv idual export allocations under the MIEQ, i.e. they must 
have exported a certain amount of sugar  during the relevant sugar season.602 Eligibility for a subsidy 
under the Production Assistance Scheme is therefore conditional on export performance within the 
meaning of Article 9.1(a).  
7.273.   With regards to the Buffer Stock Scheme, we recall that, under this Scheme, sugar mills 
receive a subsidy in respect of the quantity of buffer stock maintained .603 We note that an 
amendment to the Buffer Stock Scheme 2018 of 31 Dec ember 2018  provides  that, to be eligible for 
the subsidy,  a sugar mill  must "fully comply with all the orders/directives" issued by the DFPD for 
compliance during the 2018 -19 season . 604 As explained above, such orders include the MIEQs. Thus, 
to be eligibl e for a subsidy under the Buffer Stock Scheme 2018, sugar mills were required to have 
 
594 Brazil's first written submission, paras. 202 -203, 207 -208, 212, 216 -217, 221; Australia's first written 
submission, paras. 297 -304 and 310 -342; Guatemala's first written submission, para. 289.  Australia submits 
that India's subsidies  under the Buffer Stock Sc heme  are, in the first instance, de jure  contingent and, in the 
alternative, de facto  contingent on export performance . (Australia's first written submission, paras. 278 and 
310-341) 
595 Brazil's first written submission, paras. 227 -228; Australia's first written submission, paras. 348 -351; 
Guatemala's first written submission, para. 289.  
596 See para. 7.228  above.  
597 Appellate Body Report,  Canada – Aircraft , para. 166.  
598 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 111.  
599 Notification of 2 December 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. 
See also paras. 7.130 -7.131  above.  
600 Notification of 9 May 2018, ( Exhibit  JE-75), para. 2(c) ; Notification of 5 October 2018, ( Exhibit  JE-74), 
para. 2(c). Similarly, in order to be eligible for a subsidy in the 2015 -16 sugar season, sugar mills had to achieve 
at least 80% of their MIEQ allocation. (Notification of 2 December 2015, (Exhibit  JE-76), para. 2.iii)  
601 See para. 7.125  above.  
602 Pursuant to the proforma  application form for the 2017 -18 and 2018 -19 sugar seasons, a sugar mill 
had to indicate whether it has complied with all the orders /directives of the DFPD, and to submit relevant 
supporting documents. ( Notification of 9 May 2018, ( Exhibit  JE-75), Proforma A, para. 3(e); Notification of 
5 October 2018, ( Exhibit  JE-74), Proforma A, para. 3(e)) Likewise, pursuant to the proforma application form for 
the 2015 -16 sugar season, a sugar mill had to indicate the amount of sugar exported. (Notification of 
2 December  2015, (Exhibit  JE-76), Proforma A,  para. 3(e))  
603 See para. 7.137  above.  
604 Notification of 31 December  2018, ( Exhibit  JE-112), para. 2.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  fully complied with their individual export allocations under the MIEQ in the 2018 -19 sugar season. 
Eligibility for  a subsidy under the Buffer Stock Scheme 2018  was therefore conditional on export 
performance within the meaning of Article  9.1(a).  
7.274.   The Buffer Stock Scheme 2019 does not frame the eligibility criteria in the same way as the 
Buffer Stock Scheme 2018. Nevertheless, pursuant to the Buffer Stock Scheme 2019,  the Central 
Government takes sugar mills' MIEQ compliance into account in determining the quantity of buffer 
stock that a mill is allocated to hold. Specifically, if a sugar mill failed to export any quantity of the 
sugar that it was required to export un der the relevant MIEQ order before June 2019, the total 
amount of its MIEQ allocation would be deducted from its buffer stock.605 We recall that the amount 
of the buffer stock subsidy is determined on the basis of the value of buffer stock that sugar mills 
have been allocated to hold, at the rate of INR 31 per kilogram of sugar.606 Accordingly, the higher 
the amount of buffer stock a sugar mill is allocated to hold, the higher its value, and, as a result, 
the higher the amount of the subsidy that the sugar mi ll would receive. As noted, if a sugar mill fails 
to export any quantity of sugar in fulfilment of its MIEQ allocation, the amount equivalent to its 
overall MIEQ allocation would be deducted from the quantity of buffer stock that it would otherwise 
be allo wed to hold. As a result, a sugar mill would be permitted to hold less buffer stock and would 
therefore receive a lower subsidy. In short, we understand that under the Buffer Stock Scheme 
2019, the amount of the subsidy received by sugar mills depends dire ctly on the amount of sugar 
that they export. In other words , the amount of the subsidy sugar mills receive is "tied to" , i.e. 
"contingent on",  export performance , within the meaning of Article 9.1(a).607 
7.275.   Turning to the Marketing and Transportation Scheme, we recall that, under this Scheme, 
sugar mills receive assistance in the form of a lump sum for payment of sugar cane price dues of 
farmers for the sugar season 2019 -20 and sugar cane price arrears of previous sugar seasons .608 
One of the eligibility criteria  under the Scheme is that "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".609 More specifically, to be eligible for the assistance, a sugar mill is re quired to 
export at least 50% of its MAEQ.610 In this regard, we recall that the MAEQ o rder imposes the 
maximum admissible export quantity of sugar of 6 million ton nes, which is divided among sugar 
mills.611 Accordingly, to be eligible for assistance under the Marketing and Transportation Scheme, 
a sugar mill is required to have fulfilled at least 50% of its export target under the MAEQ order. 
Eligibility for a subsidy under the Marketing and Transportation S cheme is t herefore conditional on 
export performance within the meaning of Article 9.1(a).  
7.276.   In light of the above, we conclude that the  subsidies under the  Production Assistance, the 
Buffer Stock, and the Marketing and Transportation Schemes  are contingent on export performance  
within the meaning of Article 9.1(a) of the Agreement on Agriculture.  
 
605 The Buffer Stock Scheme 2019 provides in this regard:  
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.  
(Notification of 31 July 2019, (Exhibit  JE-77), para. 2)  
606 Notification of 31 July 2019, (Exhibit  JE-77), paras. 3(a) -3(d). 
607 Having found that  the Buffer Stock 2019 is, on its face, contingent on export performance, we do not 
need to address Australia's alternative argument regarding the alleged de facto  export contingency. 
(Australia's  first written submission, para. 319)  
608 See paras. 7.140 -7.141  above.  
609 Notification of 12 September 20 19, (Exhibit  JE-114), para. 2(a).  
610 Notification of 12 September 2019, (Exhibit  JE-114), para. 2(a). Sugar mills are required to submit 
evidence of their export performance as part of their application for assistance under the Marketing and 
Transportation Scheme. (Ibid. Proforma -A, paras. 5 and 9)  
611 Cabinet Committee on Economic Affairs  Announcement of Sugar export policy for evacuation of surplus 
stocks during sugar season 2019 -20, (Exhibit  JE-113);  MAEQ Order  of 16 September 2019 , (Exhibit  JE-115), 
Annexu re. We note that, although the MAEQ order refers to the " maximum  admissible export quantity", the 
MAEQ is fixed at 6 million tonnes of sugar, which is higher than the MIEQ of 5 million tonnes set for the 201 8-19 
sugar season.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.2.4.5.4   Duty Free Import Authorization ( DFIA ) Scheme  
7.2.4.5.4.1   Introduction  
7.277.   Australia claims that the DFIA Scheme, which exempts eligible sugar mills from paying 
customs duties on imports of raw sugar on account of past export s of white sugar , is a subsidy 
contingent on export performance within the meaning of Article 9.1(a) of th e Agreement on 
Agriculture.612 In response to India's argument under footnote 1 to the SCM Agreement, Australia 
underlines that the "DFIA attaches not to the raw sugar consumed in producing the white sugar 
exported in 2018, but rather to raw sugar subsequen tly, or yet to be, imported".613 According to 
Australia, the DFIA Scheme does not meet the requirement of footnote 1 to the SCM Agreement 
"that the remission or drawback be on an imported product that is consumed in the production of 
an exported product"  because it allows duty -free imports of raw sugar on account of past exports of 
white sugar .614 
7.278.   India argues that the DFIA Scheme does not constitute a subsidy by virtue of footnote 1 to 
the SCM Agreement, read together with paragraph  (i) of its Annex  I.615 While India agrees that the 
DFIA Scheme provides remission of import charges on a post -export basis, India argues that such 
remission is commensurate with inputs already consumed in exported products.616 India submits 
that "an exporter is only entitled to clai m an exemption on import dut [ies] 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" and that "there exists a verification mechanism to ensure that only the specific inputs ac tually 
consumed in the export product are allowed duty free import under DFIA".617 
7.279.   We begin by addressing India's allegation that the DFIA Scheme does not constitute a 
subsidy under the Agreement on Agriculture because it meets the requirements of footnote 1 to the 
SCM Agreement.  We will then turn, if necessary, to assess whether the DFIA Scheme  as it applies 
to sugar  is inconsistent with Article  9.1(a) of the Agreement on Agriculture.  
7.2.4.5.4.2   Whether the DFIA Scheme does not constitute a subsidy pursuant to 
footnote  1 to the SCM Agreement  
7.280.   Footnote 1 to Article 1 of the SCM Agreement reads:  
In accordance with the provisions of Article XVI of GATT 1994 (Note to Article XVI) and 
the provisions of Annexes I through III of this Agreement, the exemption of an expor ted 
product from duties or taxes borne by the like product when destined for domestic 
consumption, or the remission of such duties or taxes in amounts not in excess of those 
which have accrued, shall not be deemed to be a subsidy.  
7.281.   According to footnote 1, the exemption of an exported product from duties and taxes borne 
by the like product , when destined for domestic consumption in amounts not in excess of those 
which have accrued, or the remission of such duties, shall not be deemed to be a subsidy. Footnot e 1 
must be read in accordance with, inter alia , Annexes I to III of the SCM Agreement. Annex I contains 
an illustrative list of export subsidies. In particular, paragraph (i) of Annex I refers to "[t]he remission 
or drawback of import charges in excess of  those levied on imported inputs that are consumed in 
the production of the exported product".618 Footnote 58, which is appended to Annex I(i), specifies 
that "'[r]emission' of taxes includes the refund or rebate of taxes", whereas "'[r]emission or 
drawback ' includes the full or partial exemption or deferral of import charges".  
 
612 Australia's first written submission, para. 352.  
613 Australia's second written submission, para. 216.  
614 Australia's second written submission, para. 217. See also Australia's response to Panel 
question  No. 85.   
615 India's first written submission, paras. 124-125 and 149 -155; second written submission, para. 109.  
616 India's second written submission, para. 109.  
617 India's second written submission, para. 109  (referring to Foreign Trade Policy 2015 -20 
(Exhibit  AUS-40), para. 4.12;  and Foreign Trade Policy, H andbook of Procedures 2015 -20 (Exhibit  IND-21), 
para 4.56). 
618 Footnote omitted.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.282.   Pursuant to footnote 1, read together with Annex I(i), for a "remission or drawback" of 
import charges to benefit from the shelter of footnote 1, the remission or drawback must not be  "in 
excess of [import charges] levied on imported inputs that are consumed in the production of the 
exported product". Accordingly, to ascertain whether a remission or drawback of duties is not 
"deemed to be a subsidy" by virtue of footnote 1, read in con junction with Annex I(i), a panel has 
to examine whether the measure is (i) a remission  or drawback; (ii) of import charges; (iii) on 
imported inputs that are consumed in the production of the exported product; (iv) not in excess of 
those levied on those i nputs.619 
7.283.   Footnote 1 must also be read "in accordance with" Annex II of the SCM Agreement, which 
sets out "Guidelines on Consumption of Inputs in the Production Process". Annex II provides the 
basis for examining "whether inputs are consumed in the producti on of the exported product".620 
Footnote 61 to Annex II defines "inputs that are consumed in the production process" as " inputs 
physically incorporated , energy, fuels and oil used in the production process  and catalysts which are 
consumed in the course of t heir use to obtain the exported product".621 Annex II(II)(3) provides 
further guidance on the interpretation of this phrase, by stipulating that "[i]nvestigating authorities 
should treat inputs as physically incorporated if such inputs are used in the produ ction process and 
are physically present in the product exported ."622 
7.284.   In sum, footnote 1, read in conjunction  with Annex II of the SCM Agreement, indicates that 
imported inputs that are consumed in the production of the exported product must be "used in the  
production process" and be "physically present in the product exported".623 With these 
considerations in mind, we now turn to assess the DFIA Scheme.  
7.285.   India considers that the DFIA Scheme does not constitute a subsidy because it meets the 
conditions of footnote 1, read together with paragraph (i) of Annex I to the SCM Agreement.624 In 
response, Australia submits that the DFIA Scheme does not meet the requirement of footnote 1 
"that the remission or drawback be on an imported product that is consumed in the production of 
an exported product".625 
7.286.   As noted, to fall under the scope of footnote 1, a measure has to be (i) a remission  or 
drawback; (ii) of import charges; (iii) on imported inputs that are consumed in the production of the 
exported pro duct; and (iv) not in excess of those levied on those inputs.626 Australia and India agree 
that the DFIA Scheme is a remission of import charges.627 However, Australia takes issue with the 
third item and argues that "[i]t is physically impossible for raw sugar that is or was imported customs 
duty free between 1 October 2019 and 30 September 2021 to have been consumed in the production 
of white sugar exported in 2018."628 
 
619 Panel Report, India – Export -Related Measures , para. 7.191.  
620 Chapeau of Annex II(II) of the SCM  Agreement. Although Part II of Annex II is expressly directed at 
this examination "as part of a countervailing duty investigation", this does not make Annex II irrelevant outside 
the context of countervailing duty invest igations. In our view, Annex II informs the understanding of footnote 1 
beyond the context of countervailing investigations. (See Panel Report, India – Export Related Measures , 
para. 7.182)  
621 Emphasis added.  
622 Emphasis added. Annex II(II)(3)  further provides that " an input need not be present in the final product 
in the same form in which it entered the production process ". 
623 Annex II(II)(3) of the SCM  Agreement.  
624 India's first written submission, paras. 124-125 and 149 -155; second written submission, para. 109.  
625 Australia's second written submission, para. 217. See also Australia's response to Panel 
question  No. 85.   
626 See para. 7.282  above.  
627 Australia's response to Panel question  No. 85, para. 118; India's first written submission, paras. 97 -98, 
124, and 150-155; second written submission, paras. 107 -109. We recall, in this regard, that the difference 
between an exemption and a remission is that, in the case of exemptions, the duty or tax liability does not arise, 
whereas, in the case of remissions, the liability first arises, but is later remitted, including by returning a payment 
that has been made. (Panel Report, India – Export Related Measures , para. 7.169) Based on our own assessment 
of the DFIA Scheme, we understand that the DFIA is a "remission" rather than an "exemption" because sugar 
mills may receive the DFIA after importation of raw sugar. ( Foreign Trade Policy 2015 -2020, ( Exhibit  AUS-40), 
paras. 4.27 and 4.29; India's response to Panel question  No. 88 (referring to  Exhibits IND -24 and IND -25))  
628 Australia's second written submission, para. 218. See also Australia's response to Panel 
question  No. 85, paras. 116 and 126 -128. WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.287.   We recall that the DFIA Scheme allows  sugar exporters that exported white sugar between 
28 March and 30  September 2018 to claim, on account of such exports , a remission of  customs 
duties on raw sugar imported between 1 October 2019 and 30  September 2021.629  
7.288.   As explained above,  in our view , footnot e 1, read in conjunction  with Annex II of the SCM 
Agreement, requires that imported inputs be "used in the production process" and be "physically 
present in the product exported".630 We agree with Australia that this is not the case under the DFIA 
Scheme be cause it provides for duty -free importation of raw sugar (i.e. the input) after the 
export ation of white sugar (i.e. the "product exported"). The raw sugar imported between 
1 October  2019 and 30 September 2021 is not used in the production process of, and is not 
physically present in, the white sugar exported between 28 March and 30 September 2018. Clearly, 
therefore,  the remission under the DFIA Scheme does not apply to "imported inputs that are 
consumed in the production of the exported product", as footn ote 1 requires.  
7.289.   India argues that " 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 .631 India also points out  that "there exists a verification 
mechanism to ensure that only the specific inputs actually consumed in the export[ed] product are 
allowed [to be imported] duty free … under DFIA" .632 As noted above, in our view, to fall within the 
scope of  footnote 1, the imported inputs that benefit from the remission must be consumed in the 
production of the exported product , which is not the case under the DFIA Scheme . As long as this 
important requirement is not met, it is immaterial , in our view , whether the quanti ty of inputs 
imported duty free subsequent to the exportation of the final product corresponds to the quantity of 
inputs used in the production of that final product. We therefore find India's argument unconvincing.  
7.290.   Finally, we note India's statement that "the DFIA can be transferred from one entity to 
another".633 In our view, in the circumstances of this dispute, the transferability of the DFIA further 
underscores the disconnect between the imported inputs and the exported final product , since the 
importer  of the inputs and the exporter of the final product may not be the same entity.  
7.291.   In light of the above, we conclude that India has failed to establish that the DFIA Scheme  
as it applies to sugar  falls under the scope of footnote 1 to the SCM Agreement.  
7.292.   We have concluded that India has failed to establish that the DFIA Scheme  for sugar  meets 
the requirements of footnote 1 of the SCM Agreement . Consequently , we proceed to examine 
Australia's claim that the DFIA Scheme is inconsistent with Article 9.1(a) of t he Agreement on 
Agriculture.  
7.2.4.5.4.3   Whether the DFIA Scheme is inconsistent with  Article 9.1(a) of the Agreement 
on Agriculture  
7.293.   Australia claims that the DFIA Scheme is a subsidy contingent on export performance within 
the meaning of Article 9.1(a) of the Agreeme nt on Agriculture.634 In this regard, Australia notes that 
the assistance under the DFIA Scheme is provided to sugar mills by a government o r its agency 
within the meaning of Article 9.1(a).635 According to Australia, the financial contribution under the 
DFIA Scheme is in the form of revenue forgone because the DFIA Scheme creates an exception to a 
general rule of taxation.636 Australia further argues that the DFIA Scheme is a "direct subsid[y]" 
within the meaning of Article 9.1(a) because "[t]he sugar mills t hat benefit from the scheme have a 
direct relationship with [the granting authority], without any intermediaries or intervening 
factors."637 With respect to the export contingency element, Australia notes that, according to an 
 
629 Amendment to the Foreign Trade Policy 2015 -2020, (Exhibit  AUS-41), paras. 1 -2. 
630 See para. 7.283  above.  
631 India's second written submission, para. 109.  
632 India's second written submission, para. 109  (referring to Notification 01/2015 -2020, Foreign Trade 
Policy 2015 -20 (Exhibit  AUS-40), para. 4.12;  and Foreign Trade Policy, Handbook of Procedures 2015 -20 
(Exhibit  IND-21), para 4.56 ). 
633 India's response to Panel question  No. 85(a). Australia agrees with India's description of this aspect of 
the DFIA Scheme. (Australia's response to Panel que stion No. 86)  
634 Australia's first written submission, para. 352.  
635 Australia's first written submission, paras. 353 and 362.  
636 Australia's first written submission, para. 356.  
637 Australia's first written submission, para. 354.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  amendment to the DFIA Scheme o f 28 March 2018, "entities that exported white sugar between 
28 March and 30 September 2018 may be eligible to receive [an] import duty exemption between 
1 October 2019 and 30 September 2021" .638 
7.294.   Other than its arguments concerning footnote 1 of the SCM Agreement, India does not 
present  any additional  or alternative argument s in response to Australia's allegations under 
Article  9.1(a) of the Agreement on Agriculture.  
7.295.   In examining Australia's claim,  we follow the legal standard set out in paragraph  7.222  
above. Thus, we assess whether the DFIA is (i) provided by a government or its agency; (ii) 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; (iii) in the form of a direct subsidy, including payments in 
kind; and (iv) contingent on export performance.  
7.296.   Turning to the first element, we note that, as Australia argues, the DFIA Scheme is part of 
India's F oreign Trade Policy , which is implemented by the Departme nt of Commerce, Directorate 
General of Foreign Trade, a governmental authority within India's Ministry of Commerce and 
Industry.639 Applications for the DFIA have to be made to the Regional Authority of the Directorate 
General for Foreign Trade.640 This show s that the DFIA is provided by "governments or their 
agencies" within the meaning of Article 9.1(a).  
7.297.   Second, like the assistance under the Production Assistance, Buffer Stock, and Marketing 
and Transportation Schemes, the DFIA is granted to sugar mills. Th us, for the reasons set out in 
paragraphs 7.237 -7.240  above, we conclude that the DFIA is provided to "producers of an 
agricultural product" within the meaning of Article 9.1(a).  
7.298.   Turning to whether the DFIA scheme represents a "direct subsidy",  we recall that a "subsidy" 
shall be deemed to exist if there is a "financial contribution by a government or any public body" 
and "a benefit is thereby conferred".641 Regarding financial contributions in the form of revenue 
otherwise due that is forgone or not collected, to determine the existence of such a fin ancial 
contribution, a comparison must be made between the revenue actually raised and the revenue that 
would have been raised "otherwise".642 The relevant tax rules of the Member in question constitute 
a basis for comparison in determining what would other wise have been due. In many instances, 
such comparison would involve a determination of what a tax or duty rate would be "but for" the 
measure at issue.643 Exempting the recipient from a tax or duty that would have otherwise been due 
confers a benefit on th e recipient because it would make the recipient better off than it would 
otherwise have been.  
7.299.   The parties do not contest  that, "but for" the DFIA Scheme, import duties would be levied 
on raw sugar pursuant to Section 2 of India's Custom's Tariff Act 1975 a nd Chapter 17 of India's 
First Schedule.644 Therefore, we consider  that the DFIA Scheme entails a financial contribution in the 
form of revenue otherwise due that is forgone or not collected.645 We also consider that "a benefit 
is thereby conferred"646 since the remission of duties that otherwise would have to be paid puts 
eligible sugar mills in a better -off position than the y would be absent the DFIA.  In our view,  the 
subsidy under the DFIA sche me is a "direct" one , since the financial contribution is provided from 
 
638 Australia's first written  submission, para. 364.  
639 Foreign Trade Policy 2015 -2020, ( Exhibit  AUS-40). 
640 Foreign Trade Policy 2015 -2020, ( Exhibit  AUS-40), para. 4.29(i).  
641 See para. 7.225  above.  
642 Appellate Body Report, US – FSC, para. 90.  
643 Panel Report, US – FSC, para. 7.45 . At the same time, we note that, in certain circumstances, it may 
be difficult to isolate a "general" r ule of taxation and "exceptions" to the rule. Therefore, an examination under 
Article 1.1(a)(1)(ii) must be sufficiently flexible to adjust to the complexities of a Member's domestic rules of 
taxation. (See Appellate Body Report, US – FSC, paras. 90 -91. Se e also  Appellate Body Report, US – Large Civil 
Aircraft (2nd complaint) , para. 813 ) 
644 Australia's fist written submission, paras. 357 -358 (referring to Customs Tariff Act 1975, 
(Exhibit  AUS-38), Section 2 and First Schedule, Chapter 17).  As noted , in certa in circumstances, it may be 
difficult to isolate a "general" rule of taxation and "exceptions" to  the rule, and  an examination under 
Article  1.1(a)(1)(ii) must be sufficiently flexible to adjust to the complexities of a Member's domestic rules of 
taxation . (See Appellate Body Report, US – FSC, paras. 90 -91) In this dispute, no arguments were made by 
India to con test the general rule pertaining to the levying of customs duties identified by Australia.   
645 Article 1.1 (a)(1) (ii) of the SCM Agreement.  
646 Article 1.1(b) of the SCM Agreement.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  the Central  Government, through its specialized agencies, to sugar mills in a straightforward and 
immediate manner.  
7.300.   We recall that, under the DFIA Scheme, sugar exporters that exported  white sugar between 
28 March and 30 September 2018 can claim, on account of such exports , a remission of the basic 
customs duty on raw sugar imported between 1 October 2019 and 30 September 2021. In other 
words, sugar mills can only be eligible for the DF IA if they exported white sugar during the indicated 
period . In our view, therefore, the DFIA is "tied to" past export performance and, therefore, is 
"contingent" on export performance under Article 9.1(a).  
7.301.   In light of the above, we conclude that the DFIA Scheme  for sugar  is inconsistent with 
Article  9.1(a) of the Agreement on Agriculture.  
7.2.4.6   Guatemala's claim under Article 9.1(c) of the Agreement on Agriculture  
7.302.   Guatemala claims that, in addition to constituting export subsidies under Article  9.1(a), the 
Production Assistance, the Buffer Stock, and the Marketing and Transportation Schemes  constitute 
payments on the export of sugar that are financed by virtue of governmental action  within the 
meaning of Article 9.1(c) of the Agreement on Agriculture .647 Guatemal a submits that Articles 9.1(a) 
and 9.1(c) do not have mutually exclusive application and hence a measure can constitute an export 
subsidy under both provisions.648 Guatemala presents similar arguments for its claim under 
Article  9.1(c) as for its claim unde r Article 9.1(a).649 
7.303.   We have found that India's Production Assistance, Buffer Stock, and Marketing and 
Transportation Schemes  are inconsistent with Article 9.1(a). Consequently, we do not consider it 
necessary to address Guatemala's claim under Article 9.1( c) of the Agreement on Agriculture 
regarding the same Schemes.  
7.2.4.7   Overall conclusion under the Agreement on Agriculture  
7.304.   Above, we have found that, under the Production Assistance, the Buffer Stock, the Marketing 
and Transportation, and the DFIA Schemes, Indi a grants to sugar mills direct subsidies contingent 
on export performance within the meaning of Article 9.1(a) of the Agreement on Agriculture. Since  
India did not make export subsid y reduction commitments with respect to sugar  in its Schedule650, 
we conclu de that India's subsidies contingent on export performance within the meaning of 
Article  9.1(a) are inconsistent with Articles 3.3 and 8 of the Agreement on Agriculture.651 
7.2.5   Claims under the SCM Agreement  
7.2.5.1   Introduction  
7.305.   In addition to their claims under the Agreement on Agriculture, Australia and Guatemala 
also claim that India's subsidy schemes constitute  subsidies  de jure  contingent upon export 
performance  under Article 3.1(a) of the SCM Agreement.652 Their claims under Article 3.1(a) are 
largely based on the same arguments  and evidence as the claims under Article s 9.1(a) and (c) of 
the A greement on Agriculture .653 With respect to India's arguments regarding Article 27 of the 
SCM Agreement, Australia and Guatemala assert t hat the text of Article 27.2(b) is unambiguous , 
and that the eight -year export subsidy phase -out period referred to in that provision ended in 
 
647 Guatemala's first written submission, para. 291.  
648 Guatemala's first written submission, para. 275.  
649 Guatemala's first written submission, paras. 294 -297. 
650 See paras. 7.174 -7.176  above.  
651 As a result, we do not address Australia's alternative claim under Arti cle 10 of the Agreement on 
Agriculture. (See paras. 7.116  and 7.158  above)  
652 Australia's first written submission, paras . 368 -369 and 391; Guatemala's first written submission , 
para. 300.  
653 Australia's first written submission, paras. 391 -433; Guatemala's first written submission, 
paras.  310-321.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  2003.654 In this regard, Australia and Guatemala agree with the interpretation of Article 27.2(b) 
developed by the  panel in India – Export Related Measures .655  
7.306.   India argues that Article 3 .1(a) does not apply to India by virtue of Article  27 of the 
SCM Agreement, which provides for special and differential treatment for developing countries.656 
India does not dispute th at its Gross National Product (GNP) per capita reached USD 1,000 in three 
consecutive years and that India graduated from the list of Members identified in Annex VII(b) of 
the SCM Agreement in 2017.657 However, in India's view, " a period of eight years from  the date of 
entry into force of the WTO Agreement " under Article 27.2(b)  must start from the date of a 
developing country's graduation from Annex VII(b), rather than from the date of entry into force of 
the WTO Agreement.658 India explains that Members ref erred to in Annex VII(b) of the 
SCM Agreement  "must be subject to the same treatment  that is applied to other developing country 
Members in Article 27.2(b)", in other words "they are to be provided an eight -year phase out period 
with respect to export subsidies".659 In India's view, an interpretation to the contrary  "would 
necessarily rend er parts of the SCM Agreement redundant, as against developing countries ".660 
Finally, India considers that the interpretation of Article 27 developed by the panel in India – Export 
Related Measures  "is not binding and has no  legal effect in the present dis putes" because the appeal 
in that dispute is currently pending before the Appellate Body.661 
7.307.   As third parties, Canada, Costa Rica, and the United States disagree with India's 
interpretation of Article  27.2(b) . In their view,  the "period of eight years from the date of entry into 
force of the WTO Agreement"  expired  on 1 January 2003 , and therefore Article 27.2(b) does not 
apply to India .662 The European Union notes that the same issue was comprehensively addressed by 
the panel in India – Export Related Measure s. Although the panel report in that dispute is subject to 
appeal, the European Union considers that it provides useful guidance for the present dispute.663 
7.308.   We start by addressing India's defence under Article 27.2(b) of the SCM Agreement. We 
then turn, if necessary, to assess whether India's subsidy schemes are inconsistent with 
Article  3.1(a) of the SCM Agreement.  
7.2.5.2   Whether Article 27.2(b) applies to India  
7.309.   Article 27 of the SCM Agreement is titled "Special and Differential Treatment of Developing 
Country Me mbers". Article 27.2 provides:  
The prohibition of paragraph 1(a) of Article 3 shall not apply to:  
 
654 Australia's second written submission, paras. 181 -182; Guatemala's second written submission, 
paras.  118-119. Canada, Costa Rica, the European U nion, Japan, and the United States, third parties to the 
disputes, share Australia's and Guatemala's position. ( Canada's third -party submission, paras. 30 –38; Costa 
Rica's third -party submission, paras. 28 –30; European Union's third -party submission, paras . 78–80; Japan's 
third-party  statement at the first substantive meeting, paras. 10 –12; United States' third -party submission, 
paras. 59 –62) 
655 Australia's second written submission, para. 184; Guatemala's second written submission, paras. 121 
and 129.  
656 India's first written submission , paras. 127 and 129.  
657 India's first written submission, para. 132.  
658 India's first written submission, para. 139; opening statement at the first substantive meeting of the 
Panel, para. 19. India submits that its interpretati on is consistent with the principle of effectiveness in treaty 
interpretation and is supported by the context provided by Articles 27.4 and 27.5 of the SCM  Agreement. India 
contends that its interpretation is further supported by the negotiating history of  the SCM  Agreement, in 
particular, the Draft Texts by the Chairman of the Negotiating Group of the SCM  Agreement. (India's first written 
submission, paras. 136 -139, 141, and 143)  
659 India's first written submission, para. 138. (emphasis original)  
660 India's  first written submission, para. 137.  
661 India's first written submission, para. 144; second written submission, para. 66.  
662 Canada's third -party submission, paras. 30 -33 (referring to Appellate Body Report, Brazil – Aircraft , 
para. 139; Panel Report, India – Export Related Measures , para. 7.74); Costa Rica's third -party submission, 
paras. 28 -30 (referring to Panel Report, India – Export Related Measures , para. 7.74); United States' third -party 
submission, para. 59. See also United States' third -party subm ission, paras. 61 and 64 -68 (referring to Panel 
Report, India – Export Related Measures , paras. 7.50 and 7.70 -7.73).  
663 European Union's third -party submission, paras. 79 -80 (referring to Panel Report, India – Export 
Related Measures , para s. 7.28-7.74).  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  (a) developing country Members referred to in Annex VII.  
(b) other developing country Members for a period of eight years from the 
date of entry into force of the WTO Agreement, subject to compliance with 
the provisions in paragraph 4.  
7.310.   Annex VII of the SCM Agreement, titled "Developing country Members referred to in 
paragraph 2(a) of Article 27", provides, in relevant part:  
The developing country Members not subject to the provisions of paragraph 1(a) of 
Article 3 under the terms of paragraph 2(a) of Article 27 are:  
… 
(b) Each of the following developing countries which are Members of the 
WTO shall be subject to the provisio ns which are applicable to other 
developing country Members according to paragraph 2(b) of Article 27 
when GNP per capita has reached $1,000 per annum: Bolivia, Cameroon, 
Congo, Côte d'Ivoire, Dominican Republic, Egypt, Ghana, Guatemala, 
Guyana, India, Ind onesia, Kenya, Morocco, Nicaragua, Nigeria, Pakistan, 
Philippines, Senegal, Sri Lanka and Zimbabwe.664 
7.311.   Article 27. 2(a) of the SCM Agreement provides that the prohibition of subsidies contingent 
upon export performance under Article 3.1(a) does not apply to developing country Members 
referred to in Annex VII , which includes India. In turn, Annex VII(b) provides that, when the GNP 
per capita of a developing country Member listed in Annex VII has reached USD 1,000 per year, 
such Member becomes subject to the tr eatment reserved for "other developing country Members" 
under Article 27.2(b). Under Article 27.2(b), Article 3.1(a) shall not apply to "other developing 
country Members for a period of eight years from the date of entry into force of the WTO Agreement".   
7.312.   The parties agree that India has reached a GNP per capita of USD 1,000 per year and that 
India graduated from Annex VII(b) of the SCM Agreement as of 2017.665 However, the parties 
disagree whether the "period of eight years" referred to in Article 27.2(b) o f the SCM  Agreement 
begins from the date of India's graduation from Annex VII(b), as India argues, or from the date of 
entry into force of the WTO Agreement, as Australia and Guatemala argue.  
7.313.   We note, first, that India's arguments are not based on the ordi nary meaning of 
Article  27.2(b). Rather, India's interpretation is rooted in India's view of the context and negotiating 
history of this provision.666 The text of Article 27.2(b) unequivocally provides for a transition "period 
of eight years from the date o f entry into force of the WTO Agreement". The WTO Agreement entered 
into force on 1 January 1995. Therefore, it is clear from the text of Article  27.2(b) that "a period of 
eight years from the date of entry into force of the WTO Agreement " within the meani ng of 
Article  27.2(b) is the period from 1 January 1995 to 1  January  2003.667  
7.314.   We are not persuaded by India's argument that the language "shall be subject to" in 
Annex  VII(b) mandates that, when a Member graduates from Annex VII, it must receive "the same 
treatment  which other developing country Members have received, i.e. an 'eight year' phase out 
period", which would only exist if the period commenced the date of its graduation from Annex  VII.668 
 
664 Footnote omitted.  
665 We note that, p ursuant to the 2001 Decision of the Ministerial Conference on "Implementation -Related 
Issues and Concerns", the threshold of GNP per capita of USD 1,000 per year is met when Annex  VII(b) Members 
reach USD 1,00 0 in constant 1990 dollars for three consecutive years. (WTO , Ministerial Conference , Decision of 
14 November 2001, WT/MIN(01)/17, para. 10.1) The WTO Secretariat annually publishes the gross national 
product (GNP) per capita of the Annex VII(b) developing  country Members using the three most recent years for 
which data are available. According to  the WTO Secretariat, India's GNP per capita exceeded USD 1,000 per year 
for the periods 2013 -2015 and 2014 -2016. (Committee  on Subsidies and Countervailing Measur es, Annex VII(b) 
of the Agreement on Subsidies and Countervailing Measures, G/SCM/110/Add.14 (11 July 2017); Committee on 
Subsidies and Countervailing Measures, Annex VII(b) of the Agreement on Subsidies and Countervailing 
Measures, G/SCM/110/Add.15 (20 Ap ril 2018) ) 
666 India's first written submission, paras. 141 -142.  
667 Appellate Body Report, Brazil – Aircraft , para. 139.  
668 India's first written submission, para. 139. (emphasis original)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  Annex VII(b) provides that Article 27.2(b) becomes applicabl e to certain developing country 
Members " when  [their]  GNP per capita has reached $1,000 per annum ". The substance of the 
cross-reference to Article 27.2(b) is determined by the content of that provision. This means that, 
at the time of their graduation, An nex VII(b) Members become subject to the same provisions that 
apply to other developing country Members under Article 27.2(b), i.e. the eight -year transition 
period that started on 1 January 1995. We therefore consider that the text of Annex VII(b) does no t 
support India's view that Article 27.2(b) applies to Annex VII(b) Members with a modified starting 
date for the eight -year transition period.  
7.315.   It may be that , if a developing country Member graduates from Annex VII(b)  after 
1 January  2003, the cross -reference to Article 27.2(b) would have no practical effect because the 
eight-year transition period would have expired before the Member's graduation from the Annex. 
However, we do not agree with India that this renders parts of the SCM Agreement "inutile" or 
"amount[s] to an invalidation of the mandatory language in Annex VII(b)".669 In our view, the 
possibility that Members graduating from Annex VII(b) no longer benefit from the transition period 
under Article 27.2(b) is inherent in the reference in Annex VII( b) to a time -limited provision. 
Furthermore, Annex VII(b) Members that graduated before 1 January 2003 enjoyed a transition 
period pursuant to Article 27.2(b).  
7.316.   India "submits that its interpretation is further supported by Articles 27.4 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".670 In India's view, Article 27.4 "does not mention a specific date, but rather 
appears to account for the possibility of different period s applying to [Members] graduating from 
Annex VII at different times".671 India further argues that "a strict interpretation" of Article 27.2 
would mean that, under Article 27.5, an eight -year phase -out period would be available for products 
that reached ex port competitiveness, while other export subsidies would have to be eliminated.672  
7.317.   Article 27.4 of the SCM Agreement stipulates that "[a]ny developing country Member 
referred to in paragraph 2(b) shall phase out its export subsidies within the eight-year period , 
preferably in a progressive manner."673 The first part of Article 27.4 is expressly linked to 
Article  27.2(b) through the wording "[a]ny developing country Member referred to in paragraph 
2(b)". Article 27.4 then refers to phasing out exp ort subsidies " within the eight -year period ". The 
use of the definite article "the" indicates that Article 27.4 refers to a specific or already identified 
eight-year period. This period is defined in Article 27.2(b), to which Article 27.4 explicitly refers . We 
therefore disagree with India that Article 27.4 envisages the possibility of different periods applying 
to Members graduating from Annex VII at different times.  
7.318.   In turn, Article 27.5 of the SCM Agreement states:  
A developing country Member which has reached export competitiveness in any given 
product shall phase out its export subsidies for such product(s) over a period of two 
years. However, for a developing country Member which is referred to in Annex VII and 
which has reached export competitiveness  in one or more products, export subsidies on 
such products shall be gradually phased out over a period of eight years.  
7.319.   We disagree with India's view that Article 27.5 grants an extended exclusion from the 
disciplines of Article 3.1(a). Article 27.5 requir es Members that otherwise benefit from special and 
differential treatment to eliminate their export subsidies on products in which they have reached 
export competitiveness, while maintaining their right to special and differential treatment due to 
their de velopment status. In doing so, Article 27.5 treats Annex VII Members more favourably 
compared to other developing country Members by giving the former eight years to phase out these 
subsidies instead of the two -year period given to the latter. Clearly, the refore, the reference in Article 
27.5 to Annex VII should be interpreted to mean that Annex VII Members benefit from an eight -year 
phase -out period to eliminate export subsidies for products in which they have reached export 
competitiveness, as long as the y continue to satisfy the requirements of Annex VII. A Member 
graduating from Annex  VII becomes subject to Article 27.2(b), in terms of the prohibition on export 
 
669 India's first written submission, paras. 139 -140.  
670 India's first w ritten submission, para. 141.  
671 India's first written submission, para. 141.  
672 India's first w ritten submission, para. 141.  
673 Emphasis added.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  subsidies generally, and to the first sentence of Article 27.5, in terms of the amount of time  it has 
to eliminate export subsidies for products in which it has reached export competitiveness. This 
means that a Member graduating from Annex VII will be subject to Article 27.2, and will have either 
two years or the time -period between its graduation and 1 January 2003, whichever is shorter, to 
eliminate export subsidies for products in which it has reached export competitiveness. Therefore, 
we do not consider that Article 27.5 grants an extended phase -out period compared to the one under 
Article 27.2( b). 
7.320.   We note India's argument  that not accepting  its reading of Article 27.2(b), "when viewed in 
light of the object and purpose of the SCM Agreement, would result in manifestly unreasonable 
results where certain developing Members would be deprived of equi table treatment provided to 
other developing country Members with respect to phasing out of export subsidies".674 We note that 
the object and purpose of the SCM Agreement is to strengthen and improve GATT disciplines on the 
use of both subsidies and counter vailing measures, while, recognizing at the same time, the right of 
Members to impose such measures under certain conditions.675 As part of this balance, the 
SCM Agreement grants special and differential treatment to developing country Members. In 
particula r, Article 27, found in Part VIII of the SCM Agreement, titled "Developing Country Members", 
makes operational the principle of special and differential treatment.676 With this in mind, we fail to 
see how  our interpretation of Article 27.2(b) would run contrary to the object and purpose of the 
SCM Agreement. Rather, in our view, this interpretation reflects the balance contained in the 
SCM Agreement between prohibiting certain types of subsidies, on the one hand, and providing 
special and differential tr eatment, in accordance with the relevant provisions of the SCM Agreement, 
on the other hand.  
7.321.   Based on the above, we conclude that the terms of Article 27.2(b) of the SCM Agreement, 
read in their context, and in light of the object and purpose of the SCM A greement, indicate that the 
eight-year transition period under Article 27.2(b) runs from 1 January 1995, i.e. the date of entry 
into force of the WTO Agreement.677 In light of the clear meaning of Article 27.2(b), we do not 
consider it necessary to further examine India's arguments regarding supplementary means of 
interpretation, such as the negotiating history of Article 27.678 
7.322.   It is undisputed that India has graduated from Annex VII(b) of the SCM Agreement. Our 
interpretation of Article 27.2(b) leads us to conclude that the transition period set forth in 
Article  27.2(b) expired on 1 January 2003, including for Members graduating from Annex VII(b). We 
therefore find that Article 27 no longer excludes India from the application of Article 3.1(a) of the 
SCM Agr eement.  
7.323.   We now examine Australia's and Guatemala's claims under Article 3.1(a).  
7.2.5.3   Whether India's subsidy schemes are inconsistent with Article 3.1(a) of the 
SCM Agreement  
7.324.   As noted, Australia and Guatemala claim that India's Production Assistance, Buffer Sto ck, 
and Marketing and Transportation Schemes constitute  subsidies  de jure  contingent upon export 
performance  under Article 3.1(a) of the SCM Agreement.679 In addition, Australia raises a claim 
 
674 India's first written submission, para. 142.  
675 Appellate Body Reports, US – Carbon Steel , paras. 73 –74 and US – Softwood Lumber IV , para. 64.  
676 Panel Report, Canada – Aircraft (Article 21.5 – Brazil) , fn 120 to para. 5.135.  
677 We note that India urged us not to rely on the interpretation of Article 27 developed by the panel in 
India – Export Related Measures  because the appeal in that dispute is currently pending before the Appellate 
Body. (India's first written submission, par a. 144) Having examined the text of Article 27.2, in its context, and 
in light of the object and purpose of the SCM  Agreement, we have arrived at an understanding of that provision 
which is consistent with the interpretation of the panel in India – Export Related Measures . (See Panel Report, 
India – Export Related Measures , para. 7.69) Furthermore, contrary to what India suggests, the fact that the 
panel report in that dispute is currently under appeal does not necessarily preclude future panels from relyin g 
on that panel's interpretation of Article 27.2, if they find such interpretation persuasive.  
678 Article 32 of the Vienna Convention on the Law of Treaties provides that "[r]ecourse may be had to 
supplementary means of interpretation … in order to confirm the meaning resulting from the application of 
Article  31, or to determine the meaning when the interpretation according to Article 31  (a) leaves the meaning 
ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable."  
679 Austr alia's first written submission,  paras. 368 -369 and 391; Guatemala's first written submission , 
para. 300.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  under Article 3.1(a) with respect to the DFIA Scheme.  In substan tiating their claims, Australia and 
Guatemala refer to  the arguments  and evidence they submitted in support of  their claims under 
Article s 9.1(a) and (c) of the A greement on Agriculture .680 
7.325.   We have found above that, through the Production Assistance, the Bu ffer Stock, the 
Marketing and Transportation, and the DFIA Schemes, India grants to sugar mills direct subsidies 
contingent on export performance within the meaning of Article 9.1(a) of the Agreement on 
Agriculture.681 In reaching these findings, we conclud ed, inter alia , that the aforementioned Schemes 
are (i) direct subsid ies, including payments in kind; (i i) provided by a government or its agency; 
and (i ii) contingent on export performance.  In examining whether the four Schemes are direct 
subsidies, we assessed, in particular, the existence of "a financial contribution" and "benefit" within 
the meaning of Article 1.1 of the SCM Agreement. Furthermore, in ascertaining whether the subsidies 
under these four Schemes are contingent on export performance within the meaning of Article 9.1(a) 
of the Agreement on Agriculture, we have concluded that the legal standard of export contingency 
under Article 9.1(a) does not differ from that under Article 3 .1(a) of the SCM Agreement.   
7.326.   We recall that, to demonstrate the existence of an export subsidy within the meaning of 
Article  3.1(a) of the SCM Agreement, a Member must establish: (i) the existence of a subsidy within 
the meaning of Article 1 of the SCM; a nd (ii) contingency of that subsidy upon export performance.682 
We have concluded that the complainants have established the existence of these two elements in 
the context of their claims under Article 9.1(a) of the Agreement on Agriculture. We therefore se e 
no need to conduct a n additional  assessment of whether the Production Assistance, the Buffer Stock, 
the Marketing and Transportation, and the DFIA Schemes are also inconsistent with Article  3.1(a) of 
the SCM Agreement.683 
7.327.   Therefore, for the reasons set ou t in section 7.2.4.5  above, we find that the Production 
Assistance, the Buffer Stock, the Marketing and Transportation, and the DFIA Schemes 
constitu te subsidies contingent upon export performance inconsistent with Article  3.1(a) of the 
SCM Agreement. By maintaining such subsidies, India has also acted inconsistently with Article 3.2 
of the SCM Agreement.  
7.2.5.4   Conclusion  under the SCM Agreement  
7.328.   In light of  the above, we find that, under the Production Assistance, the Buffer Stock, the 
Marketing and Transportation, and the DFIA Schemes, India has granted "subsidies contingent, in 
law … upon export performance" inconsistent with Article 3.1(a) of the SCM Agre ement. By 
maintaining such subsidies, India has also violated Article 3.2 of the SCM Agreement.  
7.2.6   Recommendation under Article 4.7 of the SCM Agreement684  
7.329.   We have found that, under the Production Assistance Scheme, the Buffer Stock Scheme, the 
Marketing and  Transportation Scheme, and the DFIA Scheme, India provides subsidies contingent 
upon export performance, inconsistently with Articles 3.1(a) and  3.2 of the SCM Agreement. 
Therefore, pursuant to Article 4.7 of the SCM Agreement, we recommend that India wit hdraw such 
subsidies without delay.  
7.330.   Article 4.7 further requires us to " specify in [our] recommendation  the time -period within 
which the measure must be withdrawn". We note, in this regard, that some  panels called upon to 
determine the time -period  for the  withdrawal of prohibited subsidies  under Article 4.7 found a period 
 
680 Australia's first written submission, paras. 391 -433; Guatemala's first written submission, 
paras.  310-321.  
681 See para. 7.304  above.  
682 Panel Report, Canada – Aircraft Credits and Guarantees , para. 7.16  
683 See Panel Report, US – Upland Cotton , para. 7.754.  
684 This section concerns the Panel's findings in the disputes DS580 and DS581.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  of 90 days to  be appropriate685 whereas others opted for longer periods, considering the nature of 
the measures before them.686 
7.331.   It has been pointed out in past disputes that, i n determining the time -period for withdrawal  
"without delay" under Article  4.7, a panel should typically take into account the nature of the 
measure(s) to be revoked or modified and the domestic procedures available for such revocation or 
modification.687 
7.332.   In the present disputes, India's subsidies under the Production Assistance, the Buffer Stock, 
and the Marketing and Transportation Schemes are granted by virtue of notifications issued by the 
DFPD for specific sugar seasons. In turn, the MIEQ and the MAEQ orders are issued by the DFPD 
pursuant to the authority granted to it under the Sugarcane Act and the Sugar (Control) Order.688 
As for the DFIA Scheme, it is set out in India's Foreign Trade Policy (FTP) 2015 -2020. The FTP is 
adopted by "the Central Government" in the "exercise of powers conferred by Section 5 of the 
Foreign Trade (Dev elopment and Regulation) Act, 1992".689 Thus, it appears that none of these four 
Schemes require legislative action for their withdrawal. In principle, therefore, we do not consider 
that a long period of time is needed for India to comply with our findings regarding these subsidies.  
7.333.   However, we also note that, throughout these proceedings, India has referred to the impact 
of the COVID -19 pandemic on the functioning of its various governmental institutions.690 In our view, 
the impact of the COVID -19 pandemic has to be taken into account in determining the time frame 
for the withdrawal of the export subsidies at issue. On balance, in these disputes, we consider it 
appropriate to grant India 120 days from the date of adoption of the Reports in DS580 and DS581 
for the withdrawal of these subsidies.  
7.334.   Therefore, to the extent India continues to grant subsidies under the Production Assistance, 
the Buffer Stock, the Marketing and Transportation, and the DFIA Schemes, we recommend that 
India withdraw them within 120 da ys from the date of adoption of the Reports in DS580 and DS581.  
7.3  Notifications691  
7.335.   Australia argues that India has violated its notification obligations under the Agreement on 
Agriculture and the SCM Agreement. With regard to the Agreement on Agriculture, A ustralia alleges 
three violations. First, it contends that India has failed to notify to the Committee on Agriculture its 
 
685 E.g. Panel Reports, Korea – Commercial Vessels , para. 8.700; Canada – Aircraft Credits and 
Guarantees , para. 8.4; Canada – Autos , para. 11.7; Australia – Automotive Leather II , para. 10.7; 
Brazil  - Aircra ft, para. 8.5; and US – Tax Incentives , para. 8.6.  
686 For example, in US – Upland Cotton , the panel recommended withdrawal of the measures either within 
six months from adoption of the panel report, or by 1 July 2005 (which was a little less than ten months  from 
the date of circulation of the panel report), whichever was earlier. ( Panel Report, US – Upland Cotton , 
paras.  8.3(b) and 8.3(c) ) In US – FSC, the panel observed that withdrawal of the prohibited subsidy required 
legislative action, and that the meas ures were part of the respondent's tax legislation, which was revised every 
year with effect from the beginning of each fiscal year. On that basis, the panel considered that withdrawal would 
be "without delay" if it took place no later than the start of th e fiscal year that would follow the completion of 
the appeal process. This was a year from the expected circulation of the panel report, and about half a year from 
the time at which the panel expected adoption of the report in case of an appeal . (Panel Rep ort, US – FSC, 
paras.  8.5-8.8) In India – Export Relates Measures , the panel took a measure -by-measure approach and 
considered what action would be required to withdraw each of the subsidies it found to be inconsistent with 
Articles 3.1(a) and 3.2 of the S CM Agreement . For measures that appeared to require amendments to legislative 
acts of India's Parliament, the panel specified that withdrawal "without delay" would be withdrawal within 180 
days from adoption of the panel report . (Panel Report, India – Export Related Measures , paras. 9.16 and 9.19)  
687 These domestic procedures  may include any extraordinary procedures that may be available within the 
legal system of a WTO  Member. (Appellate Body Report, Brazil – Taxation , para. 5.44 6) 
688 See section 7.2.2  above.  
689 Foreign Trade Policy 2015 -2020, (Exhibit AUS -40), p. 6.  
690 In particular, India noted that, to mitigate the effects o f COVID -19, it imposed nation -wide lockdowns 
and limited the number of government officials attending  offices. (See e.g. India's comments on the Panel's 
alternative proposal, 17 April 2020, p. 1; comments regarding the first substantive meeting and additio nal 
working procedures, 28 October 2020, para. 11. See also India's opening statement at the first substantive 
meeting of the Panel, para. 2)  
691 This section concerns the dispute DS580.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  annual domestic support to sugarcane producers subsequent to the 1995 -96 marketing year692, in 
violation of Article 18.2 of the Agreeme nt on Agriculture.693 Second, Australia argues that India has 
acted inconsistently with Article 18.3 of the Agreement on Agriculture by failing to notify to the 
Committee on Agriculture any new domestic support measure, or modification of an existing 
measur e, that India considers to be consistent with its obligations by virtue of being exempted from 
its reduction commitments.694 Third, Australia maintains that India's last notification to the 
Committee on Agriculture of its export subsidies for sugar was in 2 012, which covered the 2004 -05 
to 2009 -10 marketing years, and that since then India has not made any new notification, thus 
violating Article  18.2 of the Agreement on Agriculture.695 With regard to the SCM Agreement, 
Australia asserts that India has violat ed its notification obligations under Article 25 of that Agreement 
by failing to notify its export  subsidies  for sugar .696 More specifically, Australia maintains that "India 
has failed to notify its prohibited export subsidies, and is thus in breach of its notification obligations 
under Articles  25.1 and 25.2 of the SCM Agreement".697 Alternatively to its claims under the 
Agreement on Agriculture and the SCM Agreement, Australia submits that India has failed to comply 
with the notification obligation in Article XVI:1 of the GATT 1994.698  
7.336.   With respect to the claims under the Agreement on Agriculture , India does not dispute that 
it last notified its domestic support to sugarcane producers in its 1995 -96 notification to the 
Committee on Agriculture and that its last notification concerning export subsidies for sugar covered 
the 2004 -05 to 2009 -10 marketing years. However, India arg ues that Article  18 of the Agreement  
on Agriculture does not impose mandatory  notification obligations on Members . Rather, India asserts 
that this provision only vests  the Committee on Agriculture with discretion to determine the conduct 
of the review proc ess, based on notifications. In India's view, th e Committee on Agriculture uses  
hortatory language in framing the notification requirements, which does  not amount to a  mandatory 
obligation .699 In addition, In dia submits  that the measures at issue are not of  the kind that require 
notification pursuant to the Agreement on Agriculture or the SCM Agreement. Specifically, India 
maintains that the complainants have failed to demonstrate  that the measures at issue which 
purportedly have to be notified as domestic s upport measures meet the definition of domestic 
support under the Agreement on Agriculture.700 Similarly, with respect to the export subsidies 
that India is allegedly required to notify  under both the Agreement on Agriculture  and the 
SCM Agreement , India maintains that the  complainants have failed to demonstrate that such 
measures meet the definition of a  "subsid y" within the meaning of those two Agreements.  Thus, 
India asserts , Australi a has failed to establish that India  was under a legal obligation to submit 
notifications pursuant to Article 18 of the Agreement on Agriculture, Article 25 of the  SCM 
Agreement , and Article XVI of the GATT  1994.701 
 
692 We note that in its notifications to the Committee on Agriculture ( see e.g. G/AG/N/IND/1) , India refers 
to "marketing" years, as opposed to "financial" years. According to the Supporting Tables referenced in India's 
Schedule, the  financial year "corresponds basically  to the marketing year ". (G/AG/AGST/IND , p. 4, para. 6) 
(emphasis added) For ease of reference, we also use the term "marketing" year(s)  in this section.  
693 Australia's first written submission, para. 452.  
694 In this respect, Australia asserts that India included certain buffer stock operations for sugar  as a food 
security measure in its notification for the 1996 -97 and 1997 -98 marketing years, which India characterized as 
exempt from reduction commitments under Annex 2 of the Agreement on Agriculture. In Australia's view, India 
has failed to include such  support in its subsequent notifications, inconsistently with Article 18.3 of the Agreement 
on Agriculture. (Australia's first written submission, para. 453 (referring to G/AG/N/IND/2, DS:1, p. 3))  
695 Australia's first written submission, para.  454 (referr ing to G/AG/N/IND/9 , circulated by the Committee 
on Agriculture on 30 July 2012).  
696 Australia's first written submission, para s. 456-458. Australia asserts that, pursuant to Article 2.3 of 
the SCM Agreement , subsidies prohibited by Article 3 of the SCM Agr eement are deemed to be "specific" within 
the meaning of Article 2  of the SCM Agreement . In Australia 's view , since India grants such prohibited subsidies, 
it is obliged to notify them under Article 25 of the SCM Agreement. (Ibid. paras. 456 -457) 
697 Austral ia's response to Panel question No. 44(a), para. 139 . Australia added  that "[b]y not submitting 
notifications, India has also, in effect, violated the requirements concerning the content of notifications set out 
in Article 25.3 and 25.4." (Ibid.) 
698 Australia's first written submission, para. 459.  
699 India's first written submission, paras. 158 -159. India relies  on the language used in  document G/AG/2, 
adopted by the Committee on Agriculture at its meeting on 8  June 1995. ( Committee on Agriculture, Notification 
Requirements and Formats, G/AG/2  ("G/AG/2" )) 
700 India asserts  that the Committee on Agriculture "recommends  [sic.] Members that 'where no support 
exists, a statement to this effect should be made '." (India's first written submission, para. 159 (referring to 
G/AG/2,  p. 11, (ii)) ) However, India adds, "this recommendation again, uses hortatory language making clear  
that it is suggestive in nature and not a binding obligation."  (Ibid.)  
701 India's first written submission, para. 157.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  7.337.   We proceed with our analysis by addressin g, in turn, Australia's claims under: (i) Article  18.2 
of the Agreement on Agriculture; (ii) Article  18.3 of the Agreement on Agriculture; and (iii) Article  25 
of the SCM Agreement. Thereafter, we proceed to address Australia's alternative claims under 
Article XVI:1 of the GATT 1994, as appropriate.  
7.338.   Regarding Australia's claim under Article 18.2 of the Agreement on Agriculture, we note that 
the parties contest  whether the Agreement on Agriculture, including Article 18.2, imposes any 
notification obligation on Members .702 Hence, we must first examine whether Article 18.2 imposes a 
notification obligation before we examine whether India has violated any such obligation. The parties' 
arguments in this regard pertain to Article 18 of the Agreement on Agriculture,  read in light of 
document G/AG/2 adopted by the Committee on Agriculture regarding notifications. We examine 
Article 18 and G/AG/2 in order to determine whether they contain an obligation to notify the relevant 
measures.  
7.339.   Article 18 of the Agreement on Agr iculture p rovides, in relevant parts:  
1. Progress in the implementation of commitments negotiated under the Uruguay 
Round reform programme shall be reviewed by the Committee on Agriculture.   
2.     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, as 
well as on the basis of such documentation as the Secretariat may be requested to 
prepare in order to facilitate the review process.   
3.     In 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. This notification shall contain 
details of the new or modified measure and its conformity with the agreed criteria as 
set out either in Article 6 or in Annex  2. 
7.340.   We observe that Article 17 of the Agreement on Agriculture establishes the Committee on 
Agriculture, and paragraph 1 of its Article 18  mandate s that Committee to oversee Members' 
implementation of their commitments undertaken in the context of the Uruguay Round  reform 
programme . While the text of paragraph 2 of Article 18 might not be explicit  regarding a notification 
obligation , it conveys a clear expectation that such notifications will be made, and we do not agree  
with India's view that this provision entails no  obligation  to notify . In this regard, we find it 
appropriate to interpret this paragraph in light of its immediate cont ext found in the other paragraphs 
of the same Article. Paragraph 1 points out that progress in the implementation of commitments 
"shall be reviewed" by the Committee. Paragraph 2 provides that the review process "shall be 
undertaken" on the basis of notifi cations submitted by Members. This demonstrates that the duty of 
the Committee on Agriculture to conduct the review process is essentially based on the notifications 
to be submitted by Members . Thus, paragraphs 1 and 2 of Article 18, read together, indicat e that 
Members are expected to notify the implementation of their commitments.  
7.341.   This interpretation finds strong support in paragraph  3. This paragraph states that "[i]n 
addition to the notifications to be submitted under paragraph 2", which again reinforc es the 
expectation that Members will make notifications, "any new domestic support measure, or 
modification of an existing measure , for which exemption from reduction is claimed  shall be notified 
promptly". Clearly, the term "shall" in paragraph 3 indicate s that Members must also notify any new 
or modified measures for which an exemption from reduction commitment is claimed. We see no 
reason why the drafters would oblige Members to notify new measures and modifications to existing 
measures for which exempti ons are claimed, but not require the notification of non -exempt 
measures. We are therefore not persuaded by India's interpretation of these provisions.  
7.342.   Furthermore, we consider India's interpretation difficult to reconcile with the main purpose 
of Article  18, i.e. to enable the Committee on Agriculture to review Members' implementation of 
 
702 In this regard, we also note Canada's third -party arguments relating to Australia's claims under the 
Agreement on Agriculture, stating, inter alia , that " Article 18 of the [Agreement on Agriculture]  imposes a 
mandatory obligation on WTO Members to notify their measures; and [] Members  must in good faith notify all 
domestic support in favour of agricultural producers, including market price support, under Article 18 of the 
[Agreement on Agriculture] ."(Canada's third -party submission, para. 42)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  their commitments and thereby to ensure transparency. If we were to accept India's interpretation, 
it would mean that the provision obliging the Committee to conduct a no tification -based review 
would, at the same time, restrict the Committee's ability  to discharge that responsibilit y, by not 
requiring Members to submit such notifications . In sum , we find that Article 18 .2 of the Agreement 
on Agriculture includes  an obligation for Members to notif y all their domestic support measures and 
agricultural export subsidies  to the Committee on Agriculture.703 
7.343.   We now turn to the parties' arguments regarding document G/AG/2 .704 Australia asserts that 
in addition to the obligatio ns under Article 18 of the Agreement on Agriculture, document G/AG/2 
sets out the notifications' requirements and formats.705 Australia adds that the said document is not 
a treaty -level instrument, and "[i]t is immaterial, and unsurprising, that the documen t uses hortatory 
language".706 In India's view, since there is no notification obligation under Article 18, the hortatory 
language of document G/AG/2 itself does not amount to such an obligation.707 
7.344.   We recall that Australia brings  its claims under Article 18  of the Agreement on Agriculture, 
not under document  G/AG/2 .708 We have interpreted Article 18 as containing an obligati on to notify , 
inter alia , domestic support measures and agricultural export subsidies. We observe that document 
G/AG/2 contains hortatory  language, stating that notifications "should be made"709 within specified 
timeframes and frequencies with respect to the relevant implementation periods . We also observe  
that it clarifies the notification "requirements and formats" in each policy area .710 For instance, it 
sets out the "matters" that should be  notified, and the "intervals" at which notifications should  be 
submitted, in  accordance with  paragraph 2 of Article  18. It also confirms  that notifications cover, 
inter alia , the domestic support  meas ures and export subsidies provided by Members.711  
7.345.   Reading Article 18 of the Agreement on Agriculture together with document G/AG/2 confirms 
that Article 18.2 imposes an obligation on Members, including India,  to notify their domestic support 
and export sub sidies . Document  G/AG/2  clarifies the manner in which Members are expected to 
comply with their notification obligation s under  Article 18 .2. We do not see anything in document 
G/AG/2 that contradict s our interpretation of Article 18 .2 as containing an obligation to submit  
notifications  to the Committee on Agriculture . 
7.346.   Turning to  the issue  of whether India has acted inconsistently with Article 18.2, we recall 
that we have found that India maintains dom estic support to sugarcane producers and export 
subsidies for sugar.712 There is no dispute among the parties as to when India last submitted its 
notifications to the Committee on Agriculture. Based on our assessment of the evidence  on record713, 
we observe that, with respect to its domestic support measures, India's last notification of domestic 
support to sugarcane producers concerned  the 1995 -96 marketing year. We recall our finding that 
 
703 We note that, in the Uruguay Round, Memb ers undertook certain commitments in the areas of, inter 
alia, agricultural domestic support and export subsidies. (See e.g. Agreement on Agriculture, preamble, 
Articles  6-10) Thus, to review the progress in the implementation of such commitments, notifica tions relating to 
both areas must be submitted to the Committee on Agriculture.  
704 Document G/AG/2 was adopted by the Committee on Agriculture at its meeting on 8 June 1995 , and 
is accompanied by an Addendum, G/AG/2/Add.1, adopted on 16 October 1995.  
705 Australia's first written submission, para. 439.  
706 Australia's response to Panel question No. 44(b), para. 140.  
707 India's first written submission, para s. 158-159. 
708 Australia's first written submission, para. 468; response to Panel question No. 44(b), para. 140.  
709 See e.g. G/AG/2, p p. 11 and 24.  
710 G/AG/2, p. 1. 
711 G/AG/2, p p. 11 and 24.  We also observe that, regarding domestic support, there are two distinct types 
of notification s, i.e. those  relating to calculation and annual reporting of the Current Total AMS , which are to be 
submit ted annually , and those relating to the ad-hoc notification of new or modified domestic support measures 
for which exemption from reducti on is claimed  under Article 6 or Annex 2 . (G/AG/2, p. 11) Regarding export 
subsidies, subject to certain conditions, the deadline to submit notifications for Members with no export subsidy 
reduction commitments in Part IV of their Schedules, such as India,  is no later than 30 days following the end of 
the year in question. (G/AG/2, p. 2 4) 
712 We have established that : (i) India maintains market price support through the FRP and SAPs, as well 
as at least one  non-exempt direct payment , within the meaning of the Agreement on Agriculture (see paras.  7.66 
and 7.90 above ); (ii) India grants direct subsidies contingent on export performance within the meaning of the 
Agreement on Agriculture ( see para. 7.304  above ); and (iii) India grants export subsidies that are inconsistent 
with its obligations under the SCM Agr eement  (see para. 7.328  above).  
713 In seeking to substantiate its assertions relating to India's alleged violation, Australia refers to a 
number of Ind ia's notifications, submitted to the Committee on Agriculture. (See e.g. Australia's first written 
submission, fn 434 to para. 451, fn 435 to para. 452, fn 437 to para. 454)  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  India maintained domestic support to sugarcane producers for the 2014 -15 to 2018 -19 sugar 
seasons ( which we understand correspond to the 2015 -16 to 2019 -20 marketing years).  With 
respect to its export subsidies,  we note that India last notified its export subsidies for sugar in its 
notification to the Committee on Agricultu re, circulated on 30 July 2012, which covered the 2004 -05 
to 2009 –10 marketing years .714 In this connection, we also recall our finding s that India maintained 
export subsidies for sugar during certain marketing years  following the periods subject to its las t 
notification .715 
7.347.   We therefore conclude that India has failed to notify its domestic support to sugarcane 
producers after the 1995-96 marketing year, inconsistently with Article 18.2 of the Agreement on 
Agriculture. We also conclude that India has failed to submit notifications of its export subsidies for 
sugar after the 2009 -10 marketing year, inconsistently with Article 18.2 of  the Agreement.  
7.348.   We now turn to examine Australia's allegation that India has also violated the obligation laid 
down in Article 18.3 of the Agreement on Agriculture. In this regard, Australia  contends that India 
notified certain buffer stock operations for sugar , characterized  by India  as exempt by virtue of 
Annex 2 of the Agreement on Agriculture, in its notification for the 1996 -97 and 1997 -98 mar keting 
years .716 In Australia's view,  by failing to include such support in its subsequent notifications , India 
has violated Article 18.3 of the Agreement  on Agriculture . We note , however,  that Australia has not 
submitted evidence demonstrating that such support was maintained by India after the 1996 -97 and 
1997-98 marketing years. We therefore reject Australia's cl aim that India has acted inconsistently 
with Article  18.3. 
7.349.   We now proceed to address Australia's claims under the SCM Agreement. We begin by noting 
that Article  24 of the SCM Agreement establishes the Committee on Subsidies and Countervailing 
Measures  ("SCM Committee") , which receives Members' subsidy notifications. The relevant parts of 
Article 25  read:  
1. Members agree that, without prejudice to the provisions of paragraph 1 of 
Article  XVI of GATT 1994, their notifications of subsidies shall be submitted not later 
than 30 June of each year and shall conform to the provisions of paragraphs 2 
through  6.  
2. Members shall notify any subsidy as defined in paragraph 1 of Article 1, which is 
specific within the meaning of Article 2, granted or maint ained within their territories.  
7.350.   We observe that  paragraph 1 specifies the intervals and dates of subsidy notifications 
whereas paragraph 2 clarifies that any subsidy that is specific has to be notified. We also observe 
that the notification obligation set out under Article 25 of the SCM Agreement serves a transparency 
objective, and that, pursuant to Article 25.7, "notification of a measure does not prejudge either its 
legal status under GATT 1994 and this Agreement, the effects under this Ag reement, or the nature 
of the measure itself."717  
7.351.   We note that, in contrast to its position regarding Article 18 of the Agreement on Agriculture, 
India does not dispute the mandatory nature of the notification obligation under Article  25 of the 
SCM Agreeme nt.718 Rather, as noted above, India's sole argument is that the complainants have 
failed to establish that India provides export subsidies within the meaning of the Agreement on 
Agriculture and the SCM Agreement, and therefore Australia has failed to demon strate that a 
notification obligation exists.  
7.352.   Turning now to the facts concerning this claim, we note Australia's argument that India has 
failed to notify its export subsidies for sugar since 2009 -10.719 We observe, however, that the 
 
714 G/AG/N/IND/9 . 
715 See paras. 7.304  and 7.328  above.  
716 See fn 694 to para. 7.335  above.  
717 The Appellate Body also highlighted this aspect in Brazil – Aircraft , by stating that "Article 25 aims to 
promote transparency by requiring Members to notify their subsidies, without prejudging the legal status of those 
subsidies". (Appellate Body Report, Brazil – Aircraft , para. 149)  
718 India's first written submission, para. 157.  
719 Australia's first written submission, para. 458.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  notifications circulat ed to date by the SCM Committee show that India has never notified a subsidy 
for sugar under the SCM Agreement. We also note that India has not argued otherwise.  
7.353.   Above, we have found that, under the Production Assistance, the Buffer Stock, the Marketing 
and Transportation, and the DFIA Schemes, India grants  subsidies contingent upon export 
performance within the meaning of Article 3.1(a) of the SCM Agreement.720 Moreover, we recall that, 
under the said Schemes, India grants subsidies only to one part of its agricultural sector  - the 
producers of sugar.721 In this regard, we also note that, according to Article 2.3 of the 
SCM Agreement, subsidies falling under Article 3 are deemed to be specific. It follows that, by not 
notifying these export subsidies to the SCM Committee, India has acted inconsistently with its 
obligations under Articles  25.1 and 25.2 of the SCM Agreement.  
7.354.    In light of the above, we conclude that India has violated its obligation under Article  18.2 
of the Agreement on Agriculture by failing to notify to the Committee on Agriculture its domestic 
support to sugarcane producers subsequent to the 1995 -96 marketin g year, as well as its export 
subsidies for sugar subsequent to the 2009 -10 marketing year. We also find that by failing to notify 
to the SCM Committee its export subsidies for sugar under the Production Assistance, the Buffer 
Stock, the Marketing and Tran sportation, and the DFIA Schemes, India has violated its obligations 
under Articles 25.1 and 25.2 of the SCM Agreement .722 
8  CONCLUSIONS AND RECOMMENDATIONS  
8.1  Complaint by Brazil (DS579)  
8.1.  With respect to Brazil's claims regarding India's domestic support to sug arcane producers, w e 
find that, for five consecutive sugar seasons, from 2014 -15 to 2018 -19, India provided non -exempt 
product -specific domestic support to sugarcane producers in excess of the permitted level of 10% 
of the total value of sugarcane producti on. Therefore, we find that India is acting inconsistently with 
its obligations under Article  7.2(b) of the Agreement on Agriculture.   
8.2.  With respect to Brazil's claims regarding India's export subsidies pertaining to sugar or 
sugarcane , we find that India's  subsidies under the Production Assistance, the Buffer Stock, and the 
Marketing and Transportation Schemes are contingent on export performance within the meaning 
of Article 9.1(a) of the Agreement on Agriculture. Since India did not make export subsid y reduction 
commitments with respect to sugar in its Schedule, we find that India's subsidies contingent on 
export performance within the meaning of Article 9.1(a) are inconsistent with Articles  3.3 and 8 of 
the Agreement on Agriculture.  
8.3.  Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that, to the extent that the m easures at issue are 
inconsistent with certain provisions of the Agreement on Agriculture, they have nullified or impaired 
benefits accruing to Brazil under that Agreement.  
8.4.  Pursuant to Article 19.1 of the DSU, we recommend that India bring its WTO -inconsis tent 
measures into conformity with its obligations under the Agreement on Agriculture.  
8.2  Complaint by Australia (DS580)  
8.5.  With respect to Australia's claims regarding India's domestic support to sugarcane producers 
we find that , for five consecutive sugar seas ons, from 2014 -15 to 2018 -19, India provided 
non-exempt product -specific domestic support to sugarcane producers in excess of the permitted 
 
720 See p aras. 7.327 -7.328 above.  
721 For a detailed factual description of these four schemes, see section 7.2.2  above.  
722 In view of our  finding that, by failing to notify its export subsidies for sugar, India has violated 
Articles  25.1 and 25.2 of the SCM Agreement, we do not consider it necessary to address Australia's assertion 
that India has also, in effect , violated Articles 25.3 and 25.4 of that Agreement . (See fn 697 to para.  7.335  
above) Moreover, in light of our findings  under the Agreement on Agriculture and the SCM  Agreement , we do 
not consider it necessary to address A ustralia's alternative claims under Article XVI :1 of the GATT 1994.  WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  level of 10% of the total value of sugarcane production. Therefore, we find that India is acting 
inconsistently with  its obligations under Article 7.2(b) of the Agreement on Agriculture.  
8.6.  With respect to Australia's claims regarding India's export subsidies pertaining to sugar or 
sugarcane , we conclude that : 
a. India's subsidies under the Production Assistance, the Buffer Stock, the Marketing and 
Transportation, and the DFIA Schemes are contingent on export performance within the 
meaning of Article 9.1(a) of the Agreement on Agriculture. Since India did not make 
export subsidy  reduction commitments with respect to sugar in its Schedule, India's 
subsidies contingent on export performance within the meaning of Article 9.1(a) are 
inconsistent with Articles 3.3 and 8 of the Agreement on Agriculture ; 
b. Under the Production Assistance, the Buffer Stock, the Marketing and Transportat ion, 
and the DFIA Schemes , India provides  subsidies contingent  upon export performance , 
inconsistent ly with Article s 3.1(a)  and 3.2  of the SCM Agreement.  
8.7.  With respect to Australia's claims regarding India's notification obligations, we conclude that: 
a. By failing to notify to the Committee on Agriculture its domestic support to sugarcane 
producers subsequent to the 1995 -96 marketing year, as well as its export subsidies 
for sugar subsequent to the 2009 -10 marketing year , India has acted inconsistently 
with its obligation under Article 18.2 of the Agreement on Agriculture ; 
b. Australia has failed to demonstrate that India  maintained certain buffer stock operations 
for sugar after the 1996 -97 and 1997 -98 marketing years , which India was allegedly 
required to not ify under Article 18.3 of the Agreement on Agriculture after those 
marketing years. We  therefore reject Australia's claim that India has acted 
inconsistently with Article  18.3 of the Agreement on Agriculture ; 
c. By failing to notify to the SCM Committee its export subsidies for sugar  under the 
Production Assistance, the Buffer Stock, the Marketing and Transportation, and the DFIA 
Schemes , India has acted inconsistently with its  obligations under Articles 25.1 and 25 .2 
of the SCM Agreement.  
8.8.  Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that , to the extent that the measures at issue are 
inconsistent with certain provisions of the Agreement on Agriculture  and the SCM Agreement,  they 
have nullified or impaired benefits accruing to Australia  under those  Agreement s. 
8.9.  Pursuant to Article 19.1 of th e DSU, we recommend that India bring its WTO -inconsistent 
measures into conformity with its obligations under the Agreement on Agriculture and the 
SCM Agreement.  
8.10.  Furthermore, with respect to India's prohibited subsidies under  Article 3.1(a) of the 
SCM Agreement, we recall Australia's request that the Panel recommend, in accordance  with 
Article  4.7 of the SCM Agreement, that India withdraw those subsidies  without delay within a 
time-period specified by the Panel . 
8.11.  In light of ou r conclusions above, and  consistent with Article 4.7 of the SCM Agreement , we 
recommend that India withdraw its prohibited subsidies under the Production Assistance, the Buffer 
Stock, the Marketing and Transportation, and the DFIA Schemes within 120 days f rom the adoption 
of our Report.  
8.3  Complaint by Guatemala (DS581)  
8.12.  With respect to Guatemala's  claims regarding India's domestic support to sugarcane 
producers we find that, for five consecutive sugar seasons, from 2014 -15 to 2018 -19, India provided 
non-exemp t product -specific  domestic support to sugarcane producers in excess of the permitted WT/DS579/R • WT/DS580/R • WT/DS581/R  
 
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  level of 10% of the total value of sugarcane production. Therefore, we find that India is acting 
inconsistently with its obligations under Article 7.2(b) of the Agreement  on Agriculture.  
8.13.  With respect to Guatemala's claims regarding India's export subsidies pertaining to sugar or 
sugarcane , we conclude that : 
a. India's subsidies under the Production Assistance, the Buffer Stock,  and the Marketing 
and Transportation Schemes  are contingent on export performance within the meaning 
of Article 9.1(a) of the Agreement on Agriculture. Since India did not make export 
subsidy  reduction commitments with respect to sugar in its Schedule, India's subsidies 
contingent on export performance  within the meaning of Article 9.1(a) are inconsistent 
with Articles 3.3 and 8 of the Agreement on Agriculture ; 
b. Having found that India's Production Assistance, Buffer Stock, and Marketing and 
Transportation Schemes are inconsistent with Article 9.1(a)  of the Agreement on 
Agriculture , we do not consider it necessary to address Guatemala's claim under 
Article  9.1(c) of the Agreement on Agriculture regarding  the same Schemes ; 
c. Under the Production Assistance, the Buffer Stock, and the Marketing and 
Transportation  Schemes , India provides  subsidies contingent  upon export performance , 
inconsistent ly with Article s 3.1(a)  and 3.2  of the SCM Agreement.  
8.14.  Under Article 3.8 of the DSU, in cases  where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measures at issue are 
inconsistent with  certain provisions of the Agreement on Agriculture  and the SCM Agreement,  they 
have nullified or impaired benefits accruing to Guatemala  under those  Agreement s. 
8.15.  Pursuant to Article 19.1 of the DSU, we recommend that India bring its WTO -inconsistent 
measur es into conformity with its obligations under the Agreement on Agriculture and the 
SCM Agreement.  
8.16.  Furthermore, with respect to India's prohibited subsidies under  Article 3.1(a) of the 
SCM Agreement, we recall Guatemala's request that the Panel recommend, i n accordance  with 
Article 4.7 of the SCM Agreement, that India withdraw those subsidies  without delay within a 
time-period specified by the Panel .  
8.17.  In light of our conclusions above, and c onsistent with Article 4.7 of the SCM Agreement , we 
recommend that India withdraw its prohibited subsidies under the Production Assistance, the Buffer 
Stock, and the Marketing and Transportation Schemes within 120 days from the adoption of our 
Report.  
__________