WT/DS456/R  
 
24 February 2016  
(15-6724)  Page: 1/140  
  Original: English  
 
  
INDIA – CERTAIN MEASURES RELATING TO SOLAR CELLS 
AND SOLAR MODULES 
 
REPORT OF THE PANEL WT/DS456/R 
 
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  TABLE OF CONTENTS 
 
1  INTRODUC TION ................................................................................................ 15  
1.1  Complaint by th e United States ............................................................................. 15 
1.2  Panel establishm ent and comp osition ..................................................................... 15 
1.3  Panel proceedings ............................................................................................... 15 
1.3.1  General ............................................................................................................. 15 
1.3.2  Request for enhanc ed third-party rights ................................................................. 16 
1.3.3  Request for a preliminary ruling ............................................................................ 16 
2  FACTUAL ASPECTS ............................................................................................ 16  
3  PARTIES' REQUESTS FOR FI NDINGS AND RECOMMENDATIONS ........................ 18  
4  ARGUMENTS OF THE PARTIES ........................................................................... 18  
5  ARGUMENTS OF THE THIRD PARTIES ................................................................ 18  
6  INTERIM REVIEW ............................................................................................. 18  
7  FINDIN GS ......................................................................................................... 31  
7.1  General considerations relati ng to the measur es at issue .......................................... 31 
7.1.1  Factual description of  the measures  at issue ........................................................... 31 
7.1.2  Wider policy objectives and fa ctual context of th e DCR meas ures ............................... 35 
7.1.3  Request for a preliminary ruling on the measures at issue ......................................... 37 
7.1.4  Single or multiple DCR measure(s) within  each Batch ............................................... 39 
7.1.5  Separate or collective evaluation of DCR measures under  the three Batches ................ 39 
7.1.6  Request for enhanced third-party righ ts in light of the measures at  issue .................... 40 
7.2  Claims under Article 2.1 of the TRIMS Agreement and Article III:4 of the 
GATT 1994 ......................................................................................................... 41 
7.2.1  Intr oducti on ....................................................................................................... 41 
7.2.2  Whether measures falling under paragraph 1(a) of the TRIMs Illustrative List are 
necessarily inconsistent with Article III:4 of the GATT 1994, thus obviating the 
need for separate and additional examination of the legal elements of 
Article III:4 of the GATT 1994 ............................................................................... 43 
7.2.3  Whether the DCR measures fall under paragraph 1(a) of the TRIMs Illustrative 
List ................................................................................................................... 47 
7.2.3.1  Whether the DCR measures ar e "TRIMs" ................................................................ 48 
7.2.3.2  Whether the DCR measures "require the purchase or use by an enterprise of 
products of dome stic origin" ................................................................................. 50 
7.2.3.3  Whether the DCR measures are TRIMs that "are mandatory or enforceable 
under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage" within the meaning of the chapeau of the 
TRIMs Illustra tive List .......................................................................................... 50
 
7.2.3.4  Conclusion on paragraph 1(a) of the TRIMs Illustrative List, Article III:4 of the 
GATT 1994, and Article 2.1 of the TRIMs Agreement ................................................ 52 
7.2.4  Parties' arguments relating to th e legal elements of Article III:4 of the 
GATT 1994 ......................................................................................................... 52 
7.2.4.1  Like  products ..................................................................................................... 54 
7.2.4.2  Laws, regulations, or requirements affecting internal sale , purchase, or use ................ 55 
7.2.4.3  Less favourable treatment .................................................................................... 55 WT/DS456/R 
 
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  7.2.5  Conclusion on Article 2.1 of th e TRIMs Agreement and Article III:4 of the 
GATT 1994 ......................................................................................................... 59 
7.2.6  Article III:8(a) of the GATT 1994 ........................................................................... 59 
7.2.6.1  Intr oducti on ....................................................................................................... 59 
7.2.6.2  Applicability of Article III:8(a) in respect of the "products purchased" under the 
DCR measures .................................................................................................... 61 
7.2.6.3  Remaining elements under Article III:8(a) of the GATT 1994 ..................................... 70 
7.2.6.3.1 Whether the DCR measures are "laws,  regulations, or requirements governing 
procurement" ..................................................................................................... 70 
7.2.6.3.2 Whether the procurement under the DCR measures is "by governmental 
agencies" ........................................................................................................... 72 
7.2.6.3.3 Whether the procurement under the DCR measures is of products purchased  
"for government al purposes" ................................................................................ 73 
7.2.6.3.4 Whether the procurement and purchase of products under the DCR measures is 
 "not with a view to  commercial  resale" .................................................................. 76 
7.2.7  Conclusion on claims under Article 2.1 of the TRIMs Agreement and Article III:4 
of the GATT 1994 ................................................................................................ 84 
7.3  Defences under Articles XX (j) and XX(d) of  the GATT 1994 ....................................... 84 
7.3.1  Intr oducti on ....................................................................................................... 84 
7.3.2  Whether the DCR measures involve "the acquisition or distribution of products 
in general or loca l short su pply" ............................................................................ 88 
7.3.2.1  Intr oducti on ....................................................................................................... 88 
7.3.2.2  Interpretation of "products in general or loca l short supply" ...................................... 89 
7.3.2.3  Whether a lack of domestic manufac turing capacity amounts to solar cells and 
modules being in "general or local shor t supply" ...................................................... 93 
7.3.2.4  Whether the risk of a shortage in  India amounts to solar cells and modules 
being "products in general or local short supp ly" in India .......................................... 98 
7.3.2.5  Conclusion ....................................................................................................... 106  
7.3.3  Whether the DCR measures are measures "to secure compliance with laws or 
regulations" within the me aning of Article XX(d) .................................................... 106  
7.3.3.1  Intr oduction  ..................................................................................................... 106  
7.3.3.2  Relevant provisions of the international and domestic instruments identified by 
India ............................................................................................................... 107  
7.3.3.3  Whether the instruments identified  by India are "laws or regulations" ....................... 113  
7.3.3.3.1 International instrume nts identified by India ........................................................ 114  
7.3.3.3.2 Domestic instrument s identified by India ............................................................. 118  
7.3.3.4  Whether Section 3 of the Electricity Act is "not inconsistent with the provisions" 
of the GATT 1994 .............................................................................................. 122  
7.3.3.5  Whether the DCR measures are measures "to secure compliance" with Section 3 
of the Electr icity Act .......................................................................................... 123  
7.3.3.6  Conclusion ....................................................................................................... 126  
7.3.4  Whether the DCR measures are "essential" or "necessary" within the meaning of 
Articles XX(j) and XX(d) ..................................................................................... 126  
7.3.4.1  Intr oduction  ..................................................................................................... 126  
7.3.4.2  The relevant objective and fundam ental issue in dispute for the purpose of 
assessing whether the DCR measures are "essential" or  "necessary" ........................ 126  WT/DS456/R 
 
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  7.3.4.3  The legal standards in  Articles XX(j)  and XX(d) ..................................................... 128  
7.3.4.4  Importance of the objective, tr ade restrictiveness, and contribu tion ......................... 130  
7.3.4.5  Alternative measures ......................................................................................... 135  
7.3.4.6  Conclusion ....................................................................................................... 138  
7.3.5  Chapeau of Articl e XX of the GATT 1994 ............................................................... 138  
8  CONCLUSIONS AND RECOMMENDAT ION ......................................................... 140  WT/DS456/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 A-1 
ANNEX B 
ARGUMENTS OF THE PARTIES 
UNITED STATES 
Contents Page 
Annex B-1 First part of the integrated ex ecutive summary of the arguments of the 
United States  B-2 
Annex B-2 Second part of the integrated execut ive summary of the arguments of the 
United States B-12 
 
INDIA 
Contents Page 
Annex B-3 First part of the integrated executive summary of the arguments of India B-19 
Annex B-4 Second part of the integrated executive summary of the arguments of India B-30 
ANNEX C 
 
ARGUMENTS OF THE THIRD PARTIES 
Contents Page 
Annex C-1 Executive summary of  the arguments of Brazil C-2 
Annex C-2 Executive summary of the arguments of Canada C-5 
Annex C-3 Integrated executive summary of the arguments of the European Union C-8 
Annex C-4 Executive summary of the arguments of Japan C-12 
Annex C-5 Executive summary of the oral statement of Korea at the meeting of the panel C-17 
Annex C-6 Executive summary of the oral statement of Norway at the meeting of the panel C-20 
Annex C-7 Executive summary of the third-party su bmission of the Kingdom of Saudi Arabia C-22 
 
   WT/DS456/R 
 
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  CASES CITED IN THIS REPORT 
Short Title Full Case Title and Citation 
Argentina – Hides and 
Leather Panel Report, Argentina – Measures Affecting th e Export of Bovine Hides and 
Import of Finished Leather , WT/DS155/R and Corr.1, adopted 16 February 
2001, DSR 2001:V, p. 1779 
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, p. 515 
Argentina – Footwear (EC) Panel Report, Argentina – Safeguard Measur es on Imports of Footwear , 
WT/DS121/R, adopted 12 January 2000, as modified by Appellate Body Report WT/DS121/AB/R, DSR 2000:II, p. 575 
Argentina – Import 
Measures Panel Reports, Argentina – Measures Affectin g the Importation of Goods , 
WT/DS438/R and Add.1 / WT/DS444/R and Add.1 / WT/DS445/R and Add.1, 
adopted 26 January 2015, as modified (WT/DS438/R) and upheld (WT/DS444/R / 
WT/DS445/R) by Appellate Body Repo rts WT/DS438/AB/R / WT/DS444/AB/R / 
WT/DS445/AB/R  
Australia –Tobacco Plain 
Packaging (Dominican Republic) Australia – Certain Measures Concerning  Trademarks, Geographical Indications 
and other Plain Packaging Requirements Applicable to Tobacco Products and 
Packaging (WT/DS441) [panel report pending]  
Australia –Tobacco Plain 
Packaging (Indonesia) Australia – Certain Measures Concerning  Trademarks, Geographical Indications 
and other Plain Packaging Requirements Applicable to Tobacco Products and 
Packaging (WT/DS467)  [panel report pending] 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527 
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body 
Report WT/DS332/AB/R, DSR 2007:V, p. 1649 
Canada – Autos Panel Report, Canada – Certain Measures Affe cting the Automotive Industry , 
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3043 
Canada – Dairy Appellate Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation 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, Canada – Measures Affecting th e 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/DS103/AB/R, WT/DS113/AB/R, DSR 1999:VI, p. 2097 
Canada – Periodicals Panel Report, Canada – Certain Measures Concerning Periodicals , WT/DS31/R 
and Corr.1, adopted 30 July 1997, as modified by Appellate Body Report 
WT/DS31/AB/R, DSR 1997:I, p. 481 
Canada – Renewable Energy 
/ 
Canada – Feed-in Tariff Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Me asures Relating to the Feed-in Tariff 
Program , WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013 
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  
Canada – Wheat Exports 
and Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 2004, 
DSR 2004:VI, p. 2739 
Canada – Wheat Exports 
and Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment 
of Imported Grain , WT/DS276/R, adopted 27 September 2004, upheld by 
Appellate Body Report WT/DS276/AB/R, DSR 2004:VI, p. 2817 
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 23 October 
2002, DSR 2002:VIII, p. 3045 (Corr. 1, DSR 2006:XII,  p. 5473) WT/DS456/R 
 
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  Short Title Full Case Title and Citation 
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted 
12 January 2009, DSR 2009:I, p. 3 
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts , 
WT/DS339/R, Add.1 and Add.2 / WT/DS340/R, Add.1 and Add.2 / WT/DS342/R, Add.1 and Add.2, adopted 12 January 2009, upheld (WT/DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by Appellate 
Body Reports WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, 
DSR 2009:I, p. 119 
China – Publications and 
Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights and 
Distribution Services for Certain Publ ications and Audiovisual Entertainment 
Products , WT/DS363/AB/R, adopted 19 January 2010, DSR 2010:I, p. 3 
China – Publications and 
Audiovisual Products Panel Report, China –  Measures Affecting Trading Rights and Di stribution 
Services for Certain Publications an d Audiovisual Entertainment Products , 
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261 
China – Rare Earths Panel Reports, China – Measures Related to the Exportation of Rare Earths, 
Tungsten, and Molybdenum , WT/DS431/R and Add.1 / WT/DS432/R and Add.1 / 
WT/DS433/R and Add.1, adopted 29 August 2014, upheld by Appellate Body 
Reports WT/DS431/AB/R / WT/D S432/AB/R / WT/DS433/AB/R 
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 
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R, Add.1 and Corr.1 / WT/DS395/R, Add.1 and Corr.1 / 
WT/DS398/R, Add.1 and Corr.1, adopted 22 February 2012, as modified by 
Appellate Body Reports WT/DS394/AB/R  / WT/DS395/AB/R / WT/DS398/AB/R, 
DSR 2012:VII, p. 3501 
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535 
Dominican Republic – 
Import and Sale of 
Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted 19 May 
2005, DSR 2005:XV, p. 7367 
Dominican Republic – 
Import and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R, adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425 
Dominican Republic – 
Safeguard Measures Panel Report, Dominican Republic – Safeguard Measures on Imports of 
Polypropylene Bags and Tubular Fabric , WT/DS415/R, WT/DS416/R, 
WT/DS417/R, WT/DS418/R, and Add.1, adopted 22 February 2012, DSR 
2012:XIII, p. 6775 
EC – Asbestos Appellate Body Report, European Communities – Meas ures Affecting Asbestos 
and Asbestos-Containing Products , WT/DS135/AB/R, adopted 5 April 2001, 
DSR 2001:VII, p. 3243 
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 1997, 
DSR 1997:II, p. 591 
EC – Bananas III 
(Guatemala and Honduras) Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas, Comp laint by Guatemala and Honduras , 
WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 695 
EC – Bed Linen 
(Article 21.5 – India) Panel Report, European Communities – Anti-Dum ping Duties on Imports of 
Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU  by 
India, WT/DS141/RW, adopted 24 April 2003, as modified by Appellate Body 
Report WT/DS141/AB/RW, DSR 2003:IV, p. 1269  
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 – IT Products Panel Reports, European Communities and its me mber States – Tariff Treatment 
of Certain Information Technology Products , WT/DS375/R / WT/DS376/R / 
WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 933 WT/DS456/R 
 
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  Short Title Full Case Title and Citation 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 1998, 
DSR 1998:V, p. 2031 
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R / WT/DS401/AB/R, 
adopted 18 June 2014 
EC – Seal Products Panel Reports, European Communities – Measures  Prohibiting the Importation 
and Marketing of Seal Products , WT/DS400/R and Add.1 / WT/DS401/R and 
Add.1, adopted 18 June 2014, as modified by Appellate Body Reports 
WT/DS400/AB/R / WT/DS401/AB/R 
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 – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting of 
Tariff Preferences to Developing Countries , WT/DS246/AB/R, adopted 20 April 
2004, DSR 2004:III, p. 925 
EC – Tariff Preferences Panel Report, European Communities – Conditio ns for the Granting of Tariff 
Preferences to Developing Countries , WT/DS246/R, adopted 20 April 2004, as 
modified by Appellate Body Report  WT/DS246/AB/R, DS R 2004:III, p. 1009 
EC – Trademarks and 
Geographical Indications 
(Australia) Panel Report,  European Communities – Prot ection of Trademarks and 
Geographical Indications for Agricultural  Products and Foodstuffs, Complaint by 
Australia , WT/DS290/R, adopted 20 April 2005, DSR 2005:X, p. 4603 
EC – Trademarks and 
Geographical Indications (US) Panel Report,  European Communities – Prot ection of Trademarks and 
Geographical Indications for Agricultural  Products and Foodstuffs, Complaint by 
the United States , WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII, 
p. 3499 
EC and certain member 
States – Large Civil Aircraft Panel Report, European Communities and Certai n 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 
India – Additional Import 
Duties Appellate Body Report, India – Additional and Extr a-Additional Duties on 
Imports from the United States , WT/DS360/AB/R, adopted 17 November 2008, 
DSR 2008:XX, p. 8223 
India – Agricultural Products Panel Report, India – Measures Concerning the Importation of Certain 
Agricultural Products , WT/DS430/R and Add.1, adopted 19 June 2015, as 
modified by Appellate Bo dy Report WT/DS430/AB/R 
India – Autos Panel Report, India – Measures Affecting the Automotive Sector , WT/DS146/R, 
WT/DS175/R, and Corr.1, adopted 5 April 2002, DSR 2002:V, p. 1827 
India – Patents (US) Panel Report, India – Patent Protection for Ph armaceutical and Agricultural 
Chemical Products, Complaint by the United States , WT/DS50/R, adopted 
16 January 1998, as modified by Appellate Body Report WT/DS50/AB/R, 
DSR 1998:I, p. 41 
Indonesia – Autos Panel Report, Indonesia – Certain Measures A ffecting the Automobile Industry , 
WT/DS54/R, WT/DS55/R, WT/DS59/R, WT /DS64/R, Corr.1 and Corr.2, adopted 
23 July 1998, Corr.3 and Corr.4, DSR 1998:VI, p. 2201 
Japan – Alcoholic 
Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, 
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97 
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 Import s 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 
Mexico – Taxes on Soft 
Drinks Appellate Body Report, Mexico – Tax Measures on  Soft Drinks and Other 
Beverages , WT/DS308/AB/R, adopted 24 March 2006, DSR 2006:I, p. 3 
Mexico – Taxes on Soft 
Drinks Panel Report, Mexico – Tax Measures on Soft  Drinks and Other Beverages , 
WT/DS308/R, adopted 24 March 2006, as modified by Appellate Body Report 
WT/DS308/AB/R, DSR 2006:I, p. 43 WT/DS456/R 
 
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  Short Title Full Case Title and Citation 
Thailand – Cigarettes 
(Philippines) Appellate Body Report, Thailand – Customs and Fiscal  Measures on Cigarettes 
from the Philippines , WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV, 
p. 2203 
Thailand – Cigarettes 
(Philippines) Panel Report, Thailand – Customs and Fiscal Me asures on Cigarettes from the 
Philippines , WT/DS371/R, adopted 15 July 2011, as modified by Appellate Body 
Report WT/DS371/AB/R, DSR 2011:IV, p. 2 299 
Turkey – Rice Panel Report, Turkey – Measures Affectin g the Importation of Rice , 
WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, p. 2151 
US – Anti-Dumping and 
Countervailing Duties 
(China) Appellate Body Report, United States – Definitive Anti-Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R, adopted 
25 March 2011, DSR 2011:V, p. 2869 
US – Carbon Steel (India) 
 Appellate Body Report, United States – Countervaili ng Measures on Certain Hot-
Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R, adopted 19 
December 2014 
US – Carbon Steel Appellate Body Report, United States – Countervai ling Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , WT/DS213/AB/R 
and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779 
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production and 
Sale of Clove Cigarettes , WT/DS406/AB/R, adopted 24 April 2012, DSR 2012: 
XI, p. 5751 
US – COOL 
(Article 21.5 – Canada and 
Mexico)  Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements – Recourse to Article 21.5 of the DSU by Canada and Mexico , 
WT/DS384/RW and Add.1 / WT/DS386/RW and Add.1, adopted 29 May 2015, 
as modified by Appellate Body Reports WT/DS384/AB/RW / WT/DS386/AB/RW 
US – Continued Zeroing Appellate Body Report, United States – Continued Ex istence and Application of 
Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009, 
DSR 2009:III, p. 1291 
US – Countervailing and 
Anti-Dumping Measures 
(China) Appellate Body Report, United States – Countervailing and Anti-Dumping 
Measures on Certain Products from China , WT/DS449/AB/R and Corr.1, adopted 
22 July 2014 
US – Corrosion-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 – Corrosion-Resistant 
Steel Sunset Review Panel Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon St eel Flat Products from Japan , WT/DS244/R, 
adopted 9 January 2004, as modified by Appellate Body Report 
WT/DS244/AB/R, DSR 2004:I, p. 85  
US – Shrimp (Thailand)  
/ US – Customs Bond Directive Appellate Body Report, United States – Measures Relating to Shrimp from 
Thailand / United States – Customs Bond  Directive for Merchandise Subject to 
Anti-Dumping/Countervailing Duties , WT/DS343/AB/R / WT/DS345/AB/R, 
adopted 1 August 2008, DSR 2008:VII, p. 2385 / DSR 2008:VIII, p. 2773 
US – Customs Bond 
Directive Panel Report, United States – Customs Bond Di rective for Merchandise Subject 
to Anti-Dumping/Countervailing Duties , WT/DS345/R, adopted 1 August 2008, 
as modified by Appellate Body Report WT/DS343/AB/R / WT/DS345/AB/R, 
DSR 2008:VIII, p. 2925 
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 – FSC 
(Article 21.5 – EC) Panel Report, United States – Tax Treatment for "Foreign Sales Corporations" – 
Recourse to Article 21.5 of the DSU by the European Communities , 
WT/DS108/RW, adopted 29 January 2002, as modified by Appellate Body 
Report WT/DS108/AB/RW, DSR 2002:I, p. 119 
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 (Corr.1, DSR 2006:XII, p. 5475) 
US – Gambling Panel Report, United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services , WT/DS285/R, adopted 20 April 2005, as 
modified by Appellate Body Report WT/DS285/AB/R, DSR 2005:XII, p. 5797 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3 WT/DS456/R 
 
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  Short Title Full Case Title and Citation 
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional 
Gasoline , WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body 
Report WT/DS2/AB/R, DSR 1996:I, p. 29 
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Me at from New Zealand and Australia , 
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, p. 4051 
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/DS353/AB/R, DSR 2012:II, p. 649 
US – Shrimp Appellate Body Report, United States – Import Proh ibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, 
DSR 1998:VII, p. 2755 
US – Shrimp (Thailand) / 
US – Customs Bond 
Directive Appellate Body Report, United States – Measures Relating to Shrimp from 
Thailand / United States – Customs Bond  Directive for Merchandise Subject to 
Anti-Dumping/Countervailing Duties , WT/DS343/AB/R / WT/DS345/AB/R, 
adopted 1 August 2008, DSR 2008:VII, 2385 / DSR 2008:VIII, 2773 
US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from Thailand , 
WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report 
WT/DS343/AB/R / WT/DS345/AB/R, DSR 2008:VII, 2539 
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination 
with Respect to Certain So ftwood Lumber from Canada , WT/DS257/AB/R, 
adopted 17 February 2004, DSR 2004:II, p. 571 
US – Stainless Steel 
(Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on 
Stainless Stee l from Mexico , WT/DS344/AB/R, adopted 20 May 2008, 
DSR 2008:II, p. 513 
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/AB/R, adopted 
13 June 2012, DSR 2012:IV, p. 1837 
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 
p. 4793 
GATT CASES CITED IN THIS REPORT 
Short Title Full Case Title and Citation 
Border Tax Adjustments Working Party Report, Border Tax Adjustments , L/3464, adopted 2 December 
1970, BISD 18S, p. 97 
Canada – FIRA  GATT Panel Report, Canada – Administration of th e Foreign Investment Review 
Act, L/5504, adopted 7 February 1984, BISD 30S/140 
EEC – Parts and 
Components  GATT Panel Report, European Economic Community – Regulation on Imports of 
Parts and Components , L/6657, adopted 16 May 1990, BISD 37S/132 
Japan – Agricultural 
Products I  GATT Panel Report, Japan – Restrictions on Impo rts of Certain Agricultural 
Products , L/6253, adopted 2 March 1988, BISD 35S/163 
US – Malt Beverages  GATT Panel Report, United States – Measures A ffecting Alcoholic and Malt 
Beverages , DS23/R, adopted 19 June 1992, BISD 39S/206 
US – Section 337 Tariff Act  GATT Panel Report, United States Section 337 of the Tariff Act of 1930 , L/6439, 
adopted 7 November 1989, BISD 36S/345 
US – Spring Assemblies  GATT Panel Report, United States – Imports of Certain Automotive Spring 
Assemblies , L/5333, adopted 26 May 1983, BISD 30S/107 
US – Taxes on Automobiles  GATT Panel Report, United States – Taxes on Automobiles , DS31/R, 
11 October 1994, unadopted  
US – Tuna (EEC)  GATT Panel Report, United States – Restrict ions on Imports of Tuna , DS29/R, 
16 June 1994, unadopted  
US – Tuna (Mexico)  GATT Panel Report, United States – Restrict ions on Imports of Tuna , DS21/R, 
3 September 1991, unadopted, BISD 39S/155 WT/DS456/R 
 
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   ABBREVIATIONS USED IN THIS REPORT 
Abbreviation Description 
Anti-Dumping 
Agreement Agreement on Implementation of Article VI  of the General Agreement on Tariffs and 
Trade 1994 
CERC Central Electricity Regulatory Authority 
DCR measures Domestic content requirements impo sed under Phase I (Batch 1), Phase I (Batch 2), 
and Phase II (Batch 1-A) of India's Ja waharlal Nehru National Solar Mission 
DISCOM Distribution Company 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes 
GATS General Agreement on Trade in Services 
GATT 1994 General Agreement on Tariffs and Trade 1994 
GW Gigawatt 
IAE International Energy Agency  
JNNSM or National 
Solar Mission Jawaharlal Nehru National Solar Mission 
MNRE Ministry of New and Renewable Energy 
MW Megawatt 
NAPCC National Action Plan on Climate Change 
NTPC National Thermal Power Corporation 
NVVN NTPC Vidyut Vyapar Nigam Limited 
PPA Power Purchase Agreement 
PV Photovoltaic 
SCM Agreement Agreement on Subsid ies and Countervailing Measures  
TBT Agreement  Agreement on Technical Barriers to Trade 
SECI Solar Energy Corporation of India 
SERC State Electricity Regulatory Authority 
SPD Solar Power Developer 
TRIMs Agreement Agreement on Trade-Related Investment Measures 
TRIPS Agreement  Agreement on Trade-Related Aspects of Intellectual Property Rights 
UNFCCC United Nations Framework Convention on Climate Change, done at New York, 9 May 
1992,  1771 UNTS 107; S. Treaty Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part 
II)/Add.1; 31 ILM 849 (1992) 
VGF Viability Gap Funding 
Vienna Convention Vienna Convention on the Law of Treaties , Done at Vienna, 23 May 1969, 1155 UNTS 
331; 8 International Legal Materials 679 
WTO Agreement  Marrakesh Agreement Esta blishing the World Trade Organization 
 
 WT/DS456/R 
 
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  EXHIBITS CITED IN THIS REPORT 
Exhibit No. Title 
USA-1 PV Tech , "Solar Cell Price Rises 'Putting Indian Domestic Content Projects At Risk'" (28 
March 2014) 
USA-3 Phase II Policy Document, Jawaharl al Nehru National Solar Mission , Ministry of New and 
Renewable Energy (December 2012) 
USA-4 Resolution, Jawaharlal Nehru National Solar Mission , Ministry of New and Renewable 
Energy (11 January 2010) 
USA-5 Guidelines for Selection of New Grid Connected Solar Power Projects , Ministry of New and 
Renewable Energy (July 2010) ("Phase I (Batch 1) Guidelines" ) 
USA-6 Guidelines for Selection of New Grid Connected Solar Power Projects , Batch II , Ministry of 
New and Renewable Energy (24 Augu st 2011) ("Phase I (Batch 2) Guidelines" ) 
USA-7 Guidelines for Implementation of Scheme for Setting up of 750 MW Grid-Connected Solar 
PV Power Projects Under Batch-1, Jawa harlal Nehru National Solar Mission , Ministry of 
New and Renewable Energy (October 2013) ("Phase II (Batch 1) Guidelines" ) 
USA-10 Draft Standard Power Sale Agreement for Sa le of Solar Power on Long Term Basis , Solar 
Energy Corporation of India  (23 July 2014)  
USA-11 State Electricity Utilities, Central Electricity Regulatory Commission  
USA-12 Request for Selection (RfS) Document for 7 50 MW Grid Connected Solar Photo Voltaic 
Projects Under JNNSM Phase II Batch-I , Solar Energy Corporation of India (28 October 
2013) ("Phase II (Batch 1) Request for Selection  document ") 
USA-15 Request for Selection Document for New Grid Connected Solar Photo Voltaic Projects 
Under Phase 1 of JNNSM , NTPC Vidyut Vyapar Nigam Limited  (18 August 2010) ("Phase I 
(Batch 1) Request for Selection  document ") 
USA-16 Draft Standard Power Purchase Agreement for Procurement of __ MW Solar Power on 
Long Term Basis (Under New Projects Scheme) , NTPC Vidyut Vyapar  Nigam Limited (18 
August 2010) ("Phase I (Batch 1) model PPA ") 
USA-17 Request for Selection Document for New Grid Connected Solar Photo Voltaic Projects 
Under Phase 1, Batch II of JNNSM , NTPC Vidyut Vyapar Niga m Limited (24 August 2011) 
("Phase I (Batch 2) Request for Selection  document ") 
USA-18 Draft Standard Power Purchase Agreement for Procurement of __ MW Solar Power on 
Long Term Basis (Under New Pr ojects Scheme)(Second Batch) , NTPC Vidyut Vyapar 
Nigam Limited (23 August 2011) ("Phase I (Batch 2) model PPA ") 
USA-19 Draft Standard Power Purchase Agreement for Procurement of___MW Solar Power on 
Long Term Basis under JNNSM, Phase II, Batch I Scheme , Solar Energy Corporation of 
India (30 November 2013) ("Phase II (Batch 1) model PPA ") 
USA-20 Electricity Act of 2003 [No. 36 of 2003], §§ 76(1) (2003) ("Electricity Act") 
USA-21 List of Selected Projects , NTPC Vidyut Vyapar Nigam Limited 
USA-22 List of Solar PV Projects under JNNSM Phase I Batch II Achieved Financial Closure as Per 
Schedule , NTPC Vidyut Vyapar Nigam Limited 
USA-23 Notification Regarding Selected Projects of 750 MW Grid Connected Solar PV Projects 
Under JNNSM Phase-II Batch-I , Solar Energy Corporation of India (25 February 2014) 
USA-24 Natural Group , "NSEFI Letter to SECI and MNRE Re garding Issues With DCR Category 
Projects Under JNNSM Phase II, Batch I" (26 March 2014) 
USA-28 Introduction  on the Ministry of New and Renewable Energy website 
USA-36 Private Distribution Companies in India  
USA-37 Jordan, D. C., Sekulic, B., Marion, B., & Kurtz, S. R, Performance and Aging of a 20-Year-
Old Silicon PV System , IEEE Journal of Photovoltaics (2015) 
USA-38 Ndiaye, A., Charki, A., Kobi A., Ke  'be', C., Ndiaye P., Sambou, V., Degradations of silicon 
photovoltaic modules: A literature review (2013) 
USA-39 Edgar Meza, False alarm: No panel shortage coming , PV Magazine  (27 August 2014) 
IND-1 Jawaharlal Nehru National Solar Mission: Towards Building Solar India , Ministry of New 
and Renewable Energy ("J NNSM Mission Document") 
IND-2 National Action Plan on Climate Change, Government of India (June 2008) ("NAPCC")  WT/DS456/R 
 
- 13 - 
 
  IND-3 United Nations Framework Convention on Climate Change, done at New York, 9 May 
1992,  1771 UNTS 107; S. Treaty Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part II)/Add.1; 
31 ILM 849 (1992) ("UNFCCC") 
IND-4 India to boost national solar target to 100 GW by 2022- reports , PV-Tech (17 November 
2014)  
IND-8 Laying the Foundation for a Bright Future: Assessing Progress under Phase 1 of India's 
National Solar Mission, Council on Energy, Environment and Water, Natural Resources 
Defense Council (April 2012) (" Assessing Progress under Phase I ") 
IND-9 Paving the Way for a Transformational Future, Lessons from JNNSM Phase I, Energy 
Sector Management Assistance Programme, World Bank (2013) (" Lessons from Phase I ") 
IND-12 Approval for Implementation of a Scheme for Setting up of 750 MW of Grid-connected 
Solar PV Power projects under Batch-I of Phase-II of Jawaharlal Nehru National Solar 
Mission with Viability Gap Funding support from National Clean Energy Fund , Ministry of 
New and Renewable Energy (15 October 2013)  
IND-13 Implementation of first phase of National Sola r Mission – Issue of Pres idential Directives – 
reg, Ministry of Power (22 December 2009)  
IND-14 National Electricity Policy, Ministry of Power (12 February 2005) (" National Electricity 
Policy ")  
IND-15 India, United States Energy Information Administration (26 June 2014)  
IND-16 National Electricity Plan, Central Electricity Authority (January 2012) (" National Electricity 
Plan")  
IND-17 Office Memorandum No. 44/19/2004-D(RE) , Rajiv Gandhi Grameen Vidyutikaran Yojana 
(RGGVY), Ministry of Power (18 March 2005) 
IND-18 Report of the Working Group on Power for the 12th Plan 2012-2017 , Ministry of Power 
(January 2012) 
IND-19 Energy Security and Sustainable Development in the Asia and the Pacific , United Nations 
Economic and Social Commission on the Asia and the Pacific (April 2008) 
IND-22 Integrated Energy Policy 2006 , Planning Commission, Government of India (2006) 
IND-24 International Energy Agency, Energy Security  
IND-26 Measuring Short-term Energy Security,  OECD/IEA (2011) 
IND-28 United Nations General Assembly Resolution A/RES/66/288 (adopted on 27 July 2012) 
("Rio+20 Document: The Future We Want") 
IND-29 Updated data on Manufacturing capa city of Solar Cells and Modules , Ministry of New and 
Renewable Energy (June 2014)  
IND-30 Fact Sheet: U.S. and India Climate and Clean Energy Cooperation, The White House, 
Office of the Press Secretary (25 January 2015) 
IND-32 Trade, Investment, and Industrial Policies in India: Effects on the U.S. Economy, United 
States International Trade Commission (December 2014)  
IND-35 Rio Declaration on Envi ronment and Development (1992) 
IND-36 G. Sundarrajan v. Union of India 2013 (6) SCC 620 
IND-37 Press Information Bureau, Government of India, Modi Government is Committed to 
Provide Affordable and Clean Power 24x7 for all  (12 January 2015) 
IND-38 Order in Petition No. 53/2010, determining tariff for 2010-2011, Central Electricity 
Regulatory Commission (26 April 2010) 
IND-39 Order in Petition No. 256/2010, determining tariff for 2011-2012, Central Electricity 
Regulatory Commission 
IND-40 Order in Petition No. Petition No. 243/SM /2012 (Suo-Motu), Central Electricity Regulatory 
Commission (28 February 2013) 
IND-41 Global Market Outlook for Photovoltaics , 2013-2017, European Photovoltaic Industry 
Association (2013) 
IND-43 Micheala D. Platzer, U.S. Solar Photovoltaic Manufactu ring: Industry Trends, Global 
Competition, Federal Support , Congressional Research Service (January 27 2015) 
IND-44 Formula for Allocation of Power from Ce ntral Generating Stations to States , Press 
Information Bureau, Ministry of Power, Government of India (19 March 2013) WT/DS456/R 
 
- 14 - 
 
  IND-45 NVVN Letter to Department of Commerce (5 March 2015) 
IND-46 Statement of Reasons, The Central Electricity Regulatory Commission (Fixation of Trading 
Margin) Regulations, as available at 2010  
IND-47 Sale of Solar Power to State Utilities/Discoms under Phase I of JNNSM- Trading Margin of 
NVVN, Ministry of New and Renewable Energy (7 June 2013) 
IND-48 Ehren Goossens, Solar Boom Driving First Global Panel Shortage Since 2006 , Bloomberg 
Business (18 August 2014) 
IND-49 Laura Lorenzetti, Solar panel shortage looms even as manufacturers invest in production , 
Fortune (19 August 2014) 
IND-52 The Central Electricity Regulatory Commission (Terms and Conditions for Tariff 
Determination from Renewable Energy Sources) Regulations, 2009 , Central Electricity 
Regulatory Commission 
 
  
 WT/DS456/R 
 
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  1  INTRODUCTION 
1.1  Complaint by the United States 1.1.  On 6 February 2013 and 10 February 2014, the United States requested consultations with 
India pursuant to Articles 1 and 4 of the Unde rstanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), Article XXII of the General Agreement on Tariffs and Trade 1994 
(GATT 1994), and Article 8 of the Agreement on  Trade-Related Investment Measures (TRIMs 
Agreement) with respect to the measures and claims set out below.
1  
1.2.  Consultations pursuant to these requests were held on 20 March 2013 and 20 March 2014, 
respectively. 
1.2  Panel establishment and composition 1.3.  On 14 April 2014, the United States reques ted the establishment of a panel pursuant to 
Article 6 of the DSU with standard terms of reference.
2 At its meeting on 23 May 2014, the Dispute 
Settlement Body (DSB) established a panel pursuant to the request of the United States in document WT/DS456/5, in accordance with Article 6 of the DSU.
3 
1.4.  The Panel's terms of reference are the following: 
To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the United States in 
document WT/DS456/5 and to make such findings as will assist the DSB in making 
the recommendations or in giving the rulings provided for in those agreements.4 
1.5.  On 24 September 2014, the parties agreed that the panel would be composed as follows: Chairperson: Mr David Walker 
 
Members:  Mr Pornchai Danvivathana    Mr Marco Tulio Molina Tejeda 
 
1.6.  Brazil, Canada, China, Ecuador, the European Union, Japan, the Republic of Korea, Malaysia, Norway, Russia, Saudi Arabia, Chinese Taipei and Turkey have notified their interest in 
participating in the Panel proceedings as third parties. 
1.3  Panel proceedings 1.3.1  General 1.7.  After consultation with the partie s, the Panel adopted its Working Procedures
5 and timetable 
on 13 October 2014.6 
                                               
1 See the United States' request for consultation s, WT/DS456/1 and WT/DS456/1/Add.1. The United 
States' first request for consultations was also made pursuant to Articles 4, 7, and 30 of the Agreement on 
Subsidies and Countervailing Measures (SCM Agreement) with respect to potential inconsistencies with that 
agreement. The United States' se cond request for consultations wa s not made pursuant to the SCM 
Agreement, nor did the United Stat es' request for the establishment of  a panel make reference to any 
provisions of the SCM Agreement. Th e first request for consultations ma de reference to domestic content 
requirements under Phase I of the Jawaharlal Nehru National Solar Mission, whereas the second request made reference to domestic requirements  under Phase II of the Jawaharlal Nehru National Solar Mission. 
2 United States' request for the establishment of a panel, WT/DS456/5. 
3 WT/DSB/M/345. 
4 WT/DS/456/6. 
5 See the Panel's Working Procedures in Annex A-1. 
6 The Panel took Article 12.10 of the DSU into account when setting the timetable for these proceedings. 
This provision provides that in examining a complaint against a developing country Member, "the panel shall accord sufficient time for the developing country Memb er to prepare and present its argumentation". Among 
 WT/DS456/R 
 
- 16 - 
 
  1.8.  The Panel held a first substantive meeting with the parties on 3-4 February 2015. A session 
with the third parties took place on 4 February 2015. The Panel held a second substantive meeting with the parties on 28-29 April 2015. On 9 June 2015,  the Panel issued the descriptive part of its 
Report to the parties. The Panel issued its Interi m Report to the parties on 24 July 2015. The Panel 
issued its Final Report to the parties on 28 August 2015. 
1.3.2  Request for enhanced third-party rights 1.9.  On 29 October 2014, Canada requested various additional rights for itself and the other third 
parties in these proceedings. After having consulted the parties on this matter and carefully 
considering Canada's request, the Panel informed the parties and third parties on 14 November 2014 that, for reasons to be elaborated in its Report, it had decided to decline Canada's request for enhanced third-party rights in these proceedings. The reasoning for the 
Panel's decision is provided in section 7 of this Report. 
1.3.3  Request for a preliminary ruling 1.10.  In its first written submission of 5 December 2014, India requested that the Panel make a 
preliminary ruling clarifying the scope of the measures falling within the Panel's terms of reference. 
At the invitation of the Panel, the United States  provided a response in writing on 8 January 2015 
to India's request for a preliminary ruling. Third parties were also invited to comment on India's 
request in their third-party submissions. On 16 January 2015, the Panel informed the parties that, 
in light of the clarification contained in the United States' response of 8 January 2015, the Panel did not consider it necessary to rule on India's request at that time. The Panel indicated that if 
India wished to comment further on the points rais ed in the United States' response of 8 January 
2015, it could do so at the first substantive meeting scheduled for 3-4 February 2015. In its 
opening oral statement at the first substantive meeting with the Panel, India reiterated its request for a preliminary ruling on this matter. The panel communicated its decision in writing to the 
parties and third parties on 6 February 2015. The Panel's decision regarding India's request for a 
preliminary ruling is set forth in section 7 of this Report. 
2  FACTUAL ASPECTS 
2.1.  The claims brought by the United States concern certain domestic content requirements 
imposed under the Jawaharlal Nehru National Solar Mission (National Solar Mission). These domestic content requirements concern solar cell s and solar modules, and they are imposed on 
certain entities selling electricity to government agencies under the National Solar Mission. Solar 
cells are photovoltaic devices that are components of solar modules, also known as solar panels.  
2.2.  The United States' panel request states that "[t]he domestic content requirements at issue 
are maintained through the following instruments … as well as any amendments, related 
measures, or implementing measures"
7: 
1. Ministry of New and Renewable Energy, Resolution: Jawaharlal Nehru National Solar 
Mission, No. 5/14/2008 (January 2010); 
 
 Phase I  
2. Ministry of New and Renewable Energy, Guidelines for Selection of New Grid 
Connected Solar Power Projects, Batch-I (July 2010); 
 3. Ministry of New and Renewable Energy, Guidelines for Selection of New Grid 
Connected Solar Power Projects, Batch-II (August 2011); 
 4. National Thermal Power Company Vidyut Vyapar Nigam Limited, Request for Selection 
Document for New Grid Connected Solar Photo Voltaic Projects under Phase 1 of JNNSM 
(August 2010); 
                                                                                                                                               
other things, India was given six weeks after having receiv ed the complainant's first written submission to file 
its own first submission, instead of the two to three weeks envisioned in Appendix 3 of the DSU. 
7 United States' request for th e establishment of a panel. WT/DS456/R 
 
- 17 - 
 
   
5. National Thermal Power Company Vidyut Vyapar Nigam Limited, Request for Selection Document for New Grid Connected Solar Photo Voltaic Projects under Phase 1, Batch II of JNNSM (August 2011); 
 
6. National Thermal Power Company Vidyut Vyapar Nigam Limited Draft Standard Power Purchase Agreement for Procurement of __ MW Solar Power on Long Term Basis (August 
2010); 
 7. National Thermal Power Company Vidyut Vyapar Nigam Limited, Draft Standard Power Purchase Agreement for Procurement of __ MW Solar Power on Long Term Basis (Second 
Batch) (August 2011); 
 8. Power Purchase Agreements entered into  under Phase I of the NSM, such as by 
National Thermal Power Company Vidyut Vyapar Nigam Limited or successors in contract;  
  Phase II 
 
9. Ministry of New and Renewable Energy, Jawaharlal Nehru National Solar Mission Phase II Policy Document (December 2012);  
10. Ministry of New and Renewable Energy, Sola r Energy Corporation of India, Request for 
Selection of Solar Power Developers for 750 MW Grid Connected Solar Photo Voltaic Projects under JNNSM PHASE-II: Batch-I, No.: SECI/2013/JNNSM/Ph-II, Batch-I/Solar PV/750MW 
(October 4, 2013); 
 11. Ministry of New and Renewable Energy, A pproval for Implementation of a Scheme for 
Setting up of 750 MW of Grid-connected Solar PV Power projects under Batch-I of Phase-II 
of Jawaharal Nehru National Solar Mission with Viability Gap Funding support from National Clean Energy Fund (October 15, 2013);  
12. Solar Energy Corporation of India, Request for Selection (RfS) Document for 750 MW 
Grid Connected Solar Photovoltaic Projects Under JNNSM Phase II Batch-I (October 28, 2013); 
 
13. Ministry of New and Renewable Energy, Jawaharlal Neru National Solar Mission Phase-II Guidelines for Implementation of Scheme for Setting up of 750 MW Grid-connected Solar 
PV Power Projects under Batch-I (October 25, 2013); 
 14. Solar Energy Corporation of India, Am endments in the RfS Document of JNNSM 
Phase-II, Batch-I, No.:SECI/JNNSM/SPV/P-2/B-1/RfS/102013 (November 29, 2013); 
 
15. Solar Energy Corporation of India, Am endments in the RfS Document of JNNSM 
Phase-II, Batch-I, No.:SECI/JNNSM/SPV/P-2/B-1/RfS/102013 (January 9, 2014); 
 
16. Solar Energy Corporation of India, Clarifications on the queries raised by various stakeholders (November 30, 2013); 
 
17. Solar Energy Corporation of India, Draft Standard Power Purchase Agreement for Procurement of___MW Solar Power on Long term Basis (November 30, 2013);  
18. Solar Energy Corporation of India, Draft Standard Power Purchase Agreement for 
Procurement of___MW Solar Power on Long term Basis (January 8, 2014); and  
19. Power Purchase Agreements entered into under Phase II of the NSM, such as by 
National Thermal Power Company Vidyut Vyapar Nigam Limited or the Solar Energy Corporation of India, or successors in contract. 
 
 WT/DS456/R 
 
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  3  PARTIES' REQUESTS FOR FI NDINGS AND RECOMMENDATIONS 
3.1.   The United States requests that the Pane l find that the domestic content requirements at 
issue, which are incorporated in individually executed power purchase agreements and certain 
other documents, are inconsistent with India's obligations under Article III:4 of the GATT 1994 and 
Article 2.1 of the TRIMs Agreement. The United States further requests, pursuant to Article 19.1 of 
the DSU, that the Panel recommend that India bring its measures into conformity with its WTO obligations. 
3.2.  India requests that the Panel find that th e domestic content requirements at issue are not 
inconsistent with Article III:4 of the GATT 1994 or Article 2.1 of the TRIMs Agreement. Specifically, 
India requests that the Panel find that the measures at issue accord imported solar cells and modules treatment no less favourable than that accorded to like products of Indian origin. India 
further requests that the Panel find that the derogation under Article III:8(a) of GATT 1994 is 
applicable to the measures at issue. Alternatively,  India requests that the Panel find that any such 
inconsistency would be justified under Articles XX(j) and/or XX(d) of GATT 1994. 
4  ARGUMENTS OF THE PARTIES 
4.1.  The arguments of the parties are reflecte d in their executive summaries, provided to the 
Panel in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see 
Annexes B-1, B-2, B-3, and B-4). 
5  ARGUMENTS OF THE THIRD PARTIES 5.1.  The arguments of Brazil, Canada, the Euro pean Union, Japan, Korea, Norway, and Saudi 
Arabia are reflected in their executive summaries, provided in accordance with paragraph 20 of the 
Working Procedures adopted by the Panel (see Annexes C-1, C-2, C-3, C-4, C-5, C-6, and C-7). 
China, Ecuador, Malaysia, Russia, Chinese Taipei, and Turkey did not submit written or oral arguments to the Panel. 
6  INTERIM REVIEW 
6.1.  On 24 July 2015, the Panel issued its Interim Report to the parties. On 7 August 2015, India 
and the United States each submitted written requests for review of the Interim Report. Neither 
party requested an interim review meeting. On 14 August 2015, both parties submitted comments 
on the other's requests for review.  
6.2.  In accordance with Article 15.3 of the DSU, this section of the Report sets out our response 
to the parties' requests for review of precise aspects of the Report made at the interim review 
stage. We discuss the parties' requests for substa ntive modifications below, generally in sequence 
according to the paragraphs or section to which the requests pertain. In addition to the requests discussed below, corrections were made for typographical and other non-substantive errors in the 
Report, including those identified by the parties.  
6.3.  The numbering of some of the paragraphs  and footnotes in the Final Report has changed 
from the numbering in the Interim Report. The di scussion below refers to the numbering in the 
Interim Report and, where it differs, includes the corresponding numbering in the Final Report. 
6.4.  Pursuant to the DSU, all panel proceedings  remain confidential until the Panel Report is 
circulated to WTO Members. Paragraph 23 of our Working Procedures states that "The interim report, as well as the final report prior to its official circulation, shall be kept strictly confidential 
and shall not be disclosed." The confidential nature of the Interim Report was explicitly reiterated 
when it was transmitted to the parties. On 27 August 2015, the Panel was made aware of press 
reports about the contents of the confidential Inte rim Report. In light of this, the Panel wishes to 
emphasize its disappointment and concern that the confidentiality of the Interim Report was not 
respected. WT/DS456/R 
 
- 19 - 
 
  Factual description of the measures at issue 
6.5.  India requests that paragraph 7.1 , which states that the United States' claims concern 
"certain domestic content requirements" under the Jawaharlal Nehru National Solar Mission, be amended to clarify that the measures at issue are confined to the DCR measures in Phase I 
(Batches 1 and 2) and Phase II (Batch 1) of the Mission. India states that "[w]hile paragraph 7.22 
of the Panel Report discusses the Panel's decision on India's request for a preliminary ruling, the main impact of the finding in respect of the measure at issue is not reflected in paragraph 7.1". 
India submits that "[i]n the absence of this clarification, the measure at issue is left open and 
vague".
8 The United States asks the Panel to reject India's request for an amendment to 
paragraph 7.1. The United States considers that  throughout the interim report the Panel is 
"explicitly clear" that the measures at issue are the DCR measures imposed by India under Phase I 
(Batch 1), Phase I (Batch 2), and Phase II (Batch 1) of the National Solar Mission, and that its 
findings pertain only to those measures. The United States submits that the Report "creates no ambiguity or vagueness" with respect to the precise measures at issue in this dispute.
9 
6.6.  We decline India's request that we specify, in the first sentence of the first paragraph of our 
findings, that the measures at issue are confined  to the DCR measures in Phase I (Batches 1 and 
2) and Phase II (Batch 1) of the National Solar Mi ssion. Paragraph 7.1 states (in terms identical to 
paragraph 2.1 of the Report) that "[t]he claims brought by the United States concern certain 
domestic content requirements" imposed under India's National Solar Mission. Section 7.1 then proceeds to provide additional information on the DCR measures at issue, including information on the Batches at issue. As the United States notes, the Report the Panel is "explicitly clear" that our 
findings pertain only to the DCR measures imposed by India under Phase I (Batch 1), Phase I 
(Batch 2), and Phase II (Batch 1) of the National Solar Mission. The fact that this is not specified in the first sentence of the findings does not, in our view, create any "ambiguity or vagueness".  
6.7.  India states that paragraph 7.2 "notes as a matter of fact that the entire JNNSM is sought 
to be achieved through entry into PPAs with SPDs", and states that this "is factually incorrect". India observes that "[t]he Panel does in footnote  12 refer to India's submissions wherein India has 
explained that PPAs are not the only means to achi eve the JNNSM target", but requests that "[t]his 
aspect needs to be recorded in the main body of the report and not in a footnote since it loses its relevance and makes the Panel's factual statement misleading".
10 The United States did not 
comment on India's request.  
6.8.  We note that, contrary to India's comment,  paragraph 7.2 of the Interim Report did not state 
or imply that "the entire JNNSM is sought to be achieved through entry into PPAs with SPDs". Rather, paragraph 7.2 of the Interim Report stated  that "[t]o seek to promote the generation of 
this capacity, the Government of India enters in to long-term power purchase agreements (PPAs) 
with solar power developers (SPDs)"; the footnote accompanying this sentence (footnote 57 in this 
Report) clarifies that "[t]his is not necessarily the only means being pursued to seek to achieve 
this target". We have nonetheless sought to accommodate India's request by revising the body 
text to state that PPAs are "a means" to promote this generation capacity.  
6.9.  India states that paragraph 7.3  "notes as a matter of fact that the total number of PPAs in 
place increases with each new Batch that is implemented", and states that this "is not factually 
accurate, since it is possible for smaller batches to succeed larger batches of PPAs". India requests 
that this statement "needs to be amended to state that in the batches under consideration (Batches I and II of Phase I and Batch I of Phas e II), there has been an increase in number of 
PPAs rolled out under each batch".
11 The United States did not comment on India's request.  
6.10.  We note that paragraph 7. 3 refers to the "total number of PPAs in place", and the remainder 
of this sentence specifies that 28 PPAs were entered into under Phase I (Batch 1), that 27 PPAs 
were entered into under Phase I (Batch 2), and that 47 PPAs were entered into under Phase II 
(Batch 1). Thus, we have not stated or suggested that each successive Batch involves a larger batch of PPAs than the Batch that preceded it, nor do we consider that India's suggested 
                                               
8 India's request for review of  the Interim Report, para. 1. 
9 United States' comments on India's request for review of the Interim Report, para. 2. 
10 India's request for review of  the Interim Report, para. 2. 
11 India's request for review of  the Interim Report, para. 3. WT/DS456/R 
 
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  amendment would bring greater clarification to this point. However, to avoid any 
misunderstanding and with a view to addressing India's concern, we have revised this sentence to read, "As each PPA remains in force for 25 years, the total number of PPAs in place has increased as new Batches are concurrently implemented: …".  
6.11.  Regarding the statement in footnote 26  and paragraph 7.11  of the Interim Report 
(footnote 71 and paragraph 7.11 of this Report) that the Guidelines  document "sets forth legal 
requirements that are mandatory in nature", India asserts that "[t]his is inaccurate". India states 
that while the Panel cites the parties' responses to  Panel question No. 1 in footnote 26 (footnote 
71 of this Report) and a footnote accompanying paragraph 7.11, India's response to this question "does not support the Panel's finding". India states that it had, in its response to Panel question No. 1, "clearly explained that the Guidelines in  themselves do not impose the domestic content 
requirements but provide a guiding principle for th e implementation of a specific batch that they 
pertain to".
12 The United States asks the Panel to reject India's implied request to modify 
paragraph 7.11 and the footnotes referred to by India. The United States submits that whether or 
not the Guidelines documents themselves impose a legal obligation to comply with domestic 
content requirements, it is accurate to state that the Guidelines  documents " set forth  legal 
requirements with which compliance is necessary": the DCR provisions in each of the Guidelines 
documents are re-stated verbatim  in each of the corresponding Request for Selection documents; 
and the DCRs (as reflected in the Request for Selection  documents) are incorporated by reference 
into the model PPA, and individually executed PPA s. The United States observes that India's 
comment on this paragraph of the Report does not dispute that the Request for Selection 
documents and PPAs impose a legal obligation to comply with the applicable DCR measures.13  
6.12.  We do not consider it inaccurate to state that the Guidelines  document "sets forth legal 
requirements that are mandatory in nature". Insofar as India is suggesting that our account is 
incomplete because it would be possible for the Guidelines  to have no legal impact if no action 
were taken after the Batch was initiated, i.e. if there were no subsequent bidding/selection process, this is already reflected in paragraph 7.11. Insofar as India is arguing that this 
hypothetical possibility means that the Guidelines  cannot be characterized as a document that 
"sets forth legal requirements that are mandatory in nature", we disagree: in our view, the fact that requirements governing who is eligible to enter into PPAs would have no legal impact on any entity in the event that no subsequent bidding/s election process were ever carried out does not 
call into question that they are "legal requirements that are mandatory in nature", or that the 
Guidelines  document "sets forth" these requirements. We have amended paragraph 7.11 to clarify 
that India has not suggested that there is any discretion as to whether the applicable DCR 
measure set forth in the Guidelines  document would be imposed in the event that the 
bidding/selection process were actually carried out. We consider that it is not necessary in the context of footnote 26 (footnote 71 of this Report) to repeat that the Guidelines  document "sets 
forth legal requirements that are mandatory in nature", and thus we have deleted this language, 
and the accompanying reference to the parties' responses to Panel question No. 1, from this 
footnote.  
6.13.  India states that the last sentence of paragraph 7.12  "is incorrect, since there is no DCR 
measure in part B of Phase II (Batch I)".
14 The United States did not comment on India's request.  
6.14.  We note that the last sentence of paragraph 7.12 states that "SPDs could use foreign cells 
and/or modules and still comply with the applicab le DCR measure in Phase II (Batch 1) by bidding 
only for projects under Part B of Batch 1". Contrary to India's comment, this does not state or 
imply that a DCR measure was applicable in respec t of Part B of Phase II (Batch 1); rather, it 
indicates that the scope of the applicable DCR measure for Phase II (Batch 1) does not extend to 
Part B. However, to avoid any misunderstanding and accommodate India's concern, we have 
added additional language in this sentence reiterating that the applicable DCR measure in Phase II (Batch 1) extends only to Part A of Batch 1.  
                                               
12 India's request for review of  the Interim Report, para. 4. 
13 United States' comments on India's request for review of the Interim Report, para. 4. 
14 India's request for review of  the Interim Report, para. 5. WT/DS456/R 
 
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  Request for enhanced third-party rights in light of the measures at issue 
6.15.  Regarding the first sentence of paragraph 7.34 , the United States suggests an addition to 
the Panel's statement that any enhanced third-party rights granted must be consistent with the provisions of the DSU. The United States requests that the Panel state that these provisions of the 
DSU include Articles 3.2 and 19.2, and in particular the language therein stating that 
recommendations and rulings of the DSB, and findings and recommendations of panels, "cannot add to or diminish the rights or obligations pr ovided in the covered agreements". India did not 
comment on the United States' request.  
6.16.  We note that paragraph 7.34 already states that a panel has the discretion to grant 
enhanced third-party rights where the circumstances warrant, "provided that any such rights are consistent with the provisions of the DSU". The United States has not explained why Articles 3.2 
and 19.2 should be singled out in this regard. Furthermore, we consider that it would be 
superfluous, in the context of this sentence, to recite the admonition that we "cannot add to or diminish the rights or obligations provided in the covered agreements". We therefore decline the 
United States' request that we add this language to paragraph 7.34.  
6.17.  Regarding the second sentence of paragraph 7.34, the United States requests two changes 
to our description of prior instances in which enhanced opportunities for third-party participation 
have been granted. With regard to the first instance identified, the United States asks the Panel to 
reflect that the third parties in the cited disputes were the beneficiaries of the challenged measures. The United States requests the deletion of a second instance that we identified, i.e. "the potential impact of DSB rulings and recommendations on third parties maintaining similar 
measures to those challenged", on the grounds that it could encompass most disputes, and 
appeared only as a secondary rationale in one prior report. India did not comment on the United States' request.  
6.18.  We recall that the second sentence of paragraph 7.34 states that panels have granted 
enhanced third party rights only where "there were particular circumstances that merited the granting of enhanced third-party rights", and then provides some instances with reference to past 
cases. We have accommodated the United States' request with respect to our description of the 
first instance identified, because we agree that the resulting formulation is more accurate. However, we decline the United States' request that we delete reference to "the potential impact of DSB rulings and recommendations on third parties maintaining similar measures to those 
challenged". The reason is that it is not apparent to us that this could encompass most disputes, 
as the United States argues. However, to accommodate the concern of the United States that this would constitute an overly broad basis for granting enhanced third party rights, we have modified 
the wording of this sentence to clarify that the examples given could potentially  constitute 
particular circumstances warranting the granting of enhanced third-party rights.  
6.19.  Regarding footnote 75  to paragraph 7.34 of the Interim Report (footnote 119 of this 
Report), which cites three Appellate Body reports for the proposition that a panel has discretion to 
grant enhanced third-party rights, the United States requests that we delete the reference to US – 
FSC (Article 21.5 – EC) . The United States makes this request on the grounds that the Appellate 
Body's statements regarding enhanced third-party rights in that case were obiter dicta . India did 
not comment on the United States' request.  
6.20.  We are not persuaded that there is a need to delete the reference to paragraph 243 of the 
Appellate Body report in US – FSC (Article 21.5 – EC) , and we have therefore retained it.  
Whether the DCR measures fall under paragrap h 1(a) of the TRIMs Illustrative List 
6.21.  The United States requests that footnote 125  to paragraph 7.55 of the Interim Report 
(footnote 169 of this Report), which cites to it s opening statement at the first meeting with the 
Panel, be supplemented with a reference to the paragraphs of its first written submission where it 
first articulated this argument. India did not comment on the United States' request.  
6.22.  We have supplemented the citation in this footnote as requested by the United States. WT/DS456/R 
 
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  Article III:8(a) of the GATT 1994 
6.23.  With reference to paragraphs 7.107 through 7.135 , India states that the Panel's 
summary of India's arguments does not sufficiently refer to the facts that India presented regarding the nature and characteristics of solar cells and modules that are relevant to the 
application of Article III:8(a) of the GATT 1994. India reproduces arguments as to why "this 
characteristic of solar cells and modules means that any purchase of solar energy is in essence a procurement of solar cells and modules", and how this makes the present case distinguishable 
from Canada – Renewable Energy / Feed-In Tariff Program .
15 India then recalls some of its 
additional arguments as to why the purchase of so lar energy is in essence a procurement of solar 
cells and modules, and then sets forth a quotation from its earlier submissions repeating these points. India requests the Panel "to place on re cord the line of reasoning as explained above".
16 
The United States requests that the Panel reject India's request to "place on the record" further 
Indian argumentation on the "nature of solar cells and modules". The United States considers that "the Panel noted each of the elements of argumentation listed in India's comment on these 
paragraphs" and "thoroughly considered the parties' arguments pertaining to the application of 
Article III:8(a) of the GATT 1994". The United States submits that "further elaboration or recitation" of India's arguments is unnecessary.
17 The United States also indicates that it does not 
understand the nature of solar cells and modules at issue in Canada – Renewable Energy / Feed-In 
Tariff Program  to be different from the nature of the ce lls and modules at issue in this dispute. 
6.24.  Our findings in paragraphs 7.107 through 7.135 summarize the parties' arguments to the 
extent necessary to facilitate understanding of  our own assessment and reasoning. In these 
paragraphs and throughout this Report, our findings do not aim to fully reproduce the parties' 
arguments as set forth in their submissions. India's comment on paragraphs 7.107 through 7.135 consists of a lengthy recitation of its arguments and a request that the Panel place this line of 
reasoning "on record". India has not explained precisely what it is requesting us to do, and it is 
therefore unclear if India is requesting replacemen t of the Panel's summaries with repetition of its 
submissions, or to revise or supplement one or more elements of our summaries in light of its 
comments. To the extent India is commenting on the weight assigned to certain arguments in the 
Panel's reasoning and conclusions, we are mindful that interim review is not the appropriate forum for relitigating arguments already put before a panel. At paragraph 7.114, we note that India's argument that it is "effectively procuring" sola r cells and modules through the DCR measures rests 
on what it considers to be a "key factual distinction" with Canada – Renewable Energy / Feed-In 
Tariff Program involving "the nature of the products in question". With a view to accommodating 
India's comments on paragraphs 7.107 through 7. 135, we have elaborated, in an accompanying 
footnote (footnote 292 of this Report), on India' s argument regarding the nature of solar cells and 
modules. 
6.25.  The United States requests that we delete a statement in paragraph 7.115 implying that 
prior Appellate Body findings may be deviated from only where there are "cogent reasons" for 
doing so, as well as an accompanying footnote citing to several prior panel and Appellate Body reports on this issue. The United States submits that the role of past adopted findings has been the subject of some debate and controversy, and that in this case it is simply not necessary to 
consider or allude to this issue. In this regard, the United States agrees with the Panel's statement 
in paragraph 7.115 that the issue of not appl ying adopted findings and reasoning is "not 
presented" in this dispute, and submits that "[b]oth parties agreed that past findings in Canada – 
Renewable Energy / Feed-In Tariff Program  were relevant and should be applied".
18 In the event 
that the Panel does allude to the issue of "cogen t reasons", then the United States elaborates its 
views on why the Appellate Body's prior statements relating to "cogent reasons" are obiter dicta , 
and also its views on why they are flawed. India notes the United States' arguments on the issue 
of "cogent reasons", and reiterates that "the Pane l should not mechanically apply the reasoning of 
the Appellate Body's reasoning to the facts before it". India states that it recognizes the "relevance" of previous Appellate Body decisions,  "but emphasizes that in the context of this 
                                               
15 India's request for review of the Interim Report, para. 6.3. 
16 India's request for review of the Interim Report, para. 6.10. 
17 United States' comments on India's request for review of the Interim Report, para. 6. 
18 United States' request for review  of the Interim Report, para. 8. WT/DS456/R 
 
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  dispute, it has not, contrary to the United States' suggestion, 'agreed that past findings in Canada-
Renewable Energy/ Feed-in Tariff Program  were relevant and should be applied'."19  
6.26.  In paragraph 7.115, we set forth our understanding that the arguments on the 
interpretation of Article III:8(a) advanced by the parties in this case appear to be based on their 
opposing understandings of the Appellate Body's findings and reasoning in Canada – Renewable 
Energy / Feed-In Tariff Program , and that we are therefore presented with the question of how the 
Appellate Body's findings and reasoning under Ar ticle III:8(a) should apply to the DCR measures 
at issue in this dispute. In this context, we st ated that "We are therefore not presented with the 
question of whether there are any cogent reasons for deviating from the Appellate Body's findings and reasoning in that case", and cited to several prior Appellate Body and panel reports where such questions were presented. The purpose of ou r statement was to distinguish the type of issue 
raised in this case from the issue raised in those cases, not to express any view on whether there 
should be "cogent reasons for deviating" from pa st adopted findings. We have revised the wording 
of this sentence, and its accompanying footnote, accordingly.  
6.27.  With regard to "government purpose and pu blic function" under Article III:8(a), India states 
that the "reference to India's argument on this as pect is also staccato and does not fully represent 
the main thrust of India's submissions". India re quests that the Panel "record" the arguments set 
forth at paragraph 29 of India's second written submission in paragraph 7.153  of the Report.
20 
The United States considers that "[t]he Panel's existing summary of India's arguments accurately reflects the arguments identified in this comment", and accordingly asks that the Panel reject India's request to "record" further Indian  arguments and "supplement" the summary.
21 
6.28.  As stated, our findings summarize the parties' arguments to the extent necessary to 
facilitate understanding of our own assessment an d reasoning. We have not fully reproduced the 
parties' arguments as set forth in their submissions. Paragraph 7.153 already records, and directly 
quotes from, paragraph 29 of India's second wr itten submission. In these circumstances, no 
changes to paragraph 7.153 were considered necessary.  
Defences under Articles XX( j) and XX(d) – generally  
6.29.  India offers a number of comments on section 7.3. India explains that most of these 
comments reflect concerns about the Panel's "incomplete consideration of India's central argumentation", and involve requests that the Panel "ensure reflection of the same".
22   
6.30.  India makes two comments on paragraphs 7.189 and 7.190 , which set forth a general 
overview of India's arguments under Articles XX(j) and XX(d). First, regarding the reference to the 
need for an 'emergency reserve' in paragraph 7.189, India reiterates its argument on why the development of manufacturing capacity of solar cells and modules is essential. The United States 
considers that this paragraph already explicitly addresses India's arguments relating to the need to 
develop domestic manufacturing capacity for solar cells and modules, and therefore requests that 
the Panel reject India's request. Second, India no tes that at paragraphs 7.189 and 7.190 the Panel 
summarizes India's rationale for the DCR measures in terms of ensuring that "Indian SPDs … have 
access to a continuous and affordable supply of the solar cells and modules", but states that this "does not reflect India's arguments". India then sets forth a longer summary of its arguments, and a request that the Panel "accurately present India's reasoning and argumentation on this issue".
23  
The United States did not comment on this request.   
6.31.  As we note in footnote 482 to paragraph 7.189, in its first written submission India provides 
a lengthy discussion of the policy objectives it is pursuing before turning to its specific arguments 
under Articles XX(j) and XX(d). Paragraph 7.189 reflects an effort to provide an overview of India's 
argumentation underlying Articles XX(j) and XX(d), in a way that distils the fundamental premises of its argumentation regarding the objectives it is pursuing, and how these objectives relate to one 
another. In that context, we explain that India co nsiders it necessary to ensure that there is an 
                                               
19 India's comments on the United States' request for review of th e Interim Report, paras. 1-2.  
20 India's request for review of  the Interim Report, para. 8. 
21 United States' comments on India's request for review of the Interim Report, para. 8. 
22 India's request for review of  the Interim Report, para. 15. 
23 India's request for review of  the Interim Report, para. 17. WT/DS456/R 
 
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  adequate reserve of domestic manufacturing capacity for solar cells and modules in case there is a 
disruption in supply of foreign solar cells and modules, and that India refers to this as an "emergency reserve". We also explain that the DC R measures seek to ensure that "a continuous 
and affordable supply of the solar cells and modu les" can be accessed by Indian SPDs. In its 
comment, India reiterates its argument on why the development of manufacturing capacity of 
solar cells and modules is essential but does not explain precisely what changes it is requesting. We consider that paragraph 7.189 adequately distils the multiple elements of India's 
argumentation on why the development of manufacturing capacity of solar cells and modules is 
essential. However, with a view to accommodating India's comment, we have added a citation to India's submissions where there is wording simila r to the formulation we use in paragraph 7.189. 
Whether the DCR measures involve "the acqu isition or distribution of products in 
general or local short supply" 
6.32.  The United States suggests that in paragraph 7.202 , where Articles 31 and 32 of the 
Vienna Convention on the Law of Treaties are first expressly mentioned, the Panel could add a 
reference to the relevant Articles of the DSU that constitute the basis for applying these rules of 
interpretation. The United States also notes that panel reports frequently contain a section in which the panel sets out its approach to interpreta tion of the covered agreements (as well as the 
standard of review and burden of proof), and th at for clarity, the Panel may wish to consider 
inserting such a section at the outset of its findings, in which it would set out its approach to these issues and which would apply generally to the various provisions it reviews. India did not comment on the United States' request.  
6.33.  We consider that it is well established that Articles 31 to 33 of the Vienna Convention on the 
Law of Treaties are "customary rules of interpre tation of public international law" within the 
meaning of Article 3.2 of the DSU.  We have nonetheless sought to accommodate the United 
States request by noting, in paragraph 7.202, that Article 3.2 of the DSU directs us to interpret 
this provision in accordance with customary rules of interpretation of public international law. In light of this addition, we do not see the value in  adding a new section, at the beginning of our 
findings, reciting the well-established rules on treaty interpretation, standard of review, and 
burden of proof.  
6.34.  India requests a number of changes to section 7.3.2. We begin by reviewing several 
comments made by India's regarding the interplay of the terms "local short supply", "general short 
supply" and "international supply". 
6.35.  At paragraph 7.230 of the Interim Report (paragraph 7.231 of this Report), the Panel had 
stated that India's argument on the need for a "contemporaneous interpretation" of Article XX(j) 
seemed to be "related to" India's other argument that "the provision could not have meant that 
short supply will not be considered to exist when products can be imported" because "that would mean that in a globalized world, no product can be said to be in short supply since it can always be 
imported". The Panel proceeded to address this other argument at paragraph 7.232  of the 
Interim Report (paragraph 7.233 of this Report) in  the context of addressing India's argument on 
"contemporaneous interpretation". In its comments, India stated that the Report should not "weave them together in a manner that does not reflect India's argumentation", and that the Panel 
was "misreading India's arguments" by stating that  the second argument is "related to" India's 
argument on the need for a "contemporaneous interpretation" of Article XX(j).
24  India explained 
that its argument on the need for a "contemporaneo us interpretation" pertains "only with regard to 
whether Article XX(j) is confined to war and natural disasters, or whether other circumstances, 
such as the crisis of climate change, can necessitate the use of Article XX(j)".25  India explained 
that its argument on access to imports in a "globalized world" relates instead to the interplay of 
the terms "local short supply", "general short supply" and "international supply".26 The United 
States did not respond to this aspect of India's comment.   
6.36.  We have revised our reasoning in light of India's clarification about the scope of its 
argumentation on the need for a "contemporaneous interpretation". First, we have removed our 
                                               
24 India's request for review of the Interim Report, paras. 24-25. 
25 India's request for review of  the Interim Report, para. 25. 
26 India's request for review of  the Interim Report, para. 25. WT/DS456/R 
 
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  discussion of India's second argument from the se ction of our reasoning discussing the question of 
"contemporaneous interpretation", and added it to the part of our reasoning discussing India's 
argumentation on the interplay of the terms "local short supply", "general short supply", and "international supply" (see paragraph 7.229 of this Report). As a consequence of this change in 
the placement of this paragraph, we have also made some consequential modifications to the 
presentation of the reasoning in paragraphs  7.228 and 7.229. Second, in light of India's 
clarification regarding the scope of its argumentation on the need for a "contemporaneous 
interpretation", we have revised paragraph 7.232 of the Interim Report (paragraph 7.233 of this 
Report) so as to not impute to India the argument that "the applicable legal standard for what it means to be a 'product in general or local short supply' has changed over time". 
6.37.  In the context of discussing India's argument  that "the provision could not have meant that 
short supply will not be considered to exist when products can be imported" because "that would 
mean that in a globalized world, no product can be said to be in short supply since it can always be 
imported" (which appeared at paragraph 7.232 of the Interim Report, and as explained above is 
now found at paragraph 7.229 of this Report), we had stated that this assumption is contradicted 
by India's insistence in this case on the need for sufficient domestic manufacturing capacity in the face of potential supply-side disruptions; we then  recalled that "[t]he essence of India's defence 
under Article XX(j), and Article XX(d), is that reliance on imported solar cells and modules by SPDs 
creates a risk of a shortage". In its comments, India submits that this statement is "incorrect", and then provides a lengthy block quote from its submissions that touches on several issues relating to the risk of a disruption in imports.
27  The United States did not respond to this aspect of India's 
comment.   
6.38.  We note that India has not explained in what sense it is "incorrect" to state that "[t]he 
essence of India's defence under Article XX(j), and Ar ticle XX(d), is that reliance on imported solar 
cells and modules by SPDs creates a risk of a shortage". However, with a view to trying to 
accommodate India's comment, we have replaced this wording with a direct quotation from India's submissions. After stating that the assumption reflected in India's argument is contradicted by 
India's insistence in this case on the need for sufficient domestic manufacturing capacity in the 
face of potential supply-side disruptions, paragraph 7.229 now states that "[t]he essence of India's defence under Article XX(j), and Article XX(d), is th at '[a]ny dependence on imports brings with it 
risks associated with supply side vulnerabilities and fluctuations', in the sense of 'risks of market 
fluctuations in international supply'". 
6.39.  India states that "a crucial omission by the Panel in its reasoning on Article XX(j) is its 
failure to examine" India's submissions on th e use of the terms "general" and "local" in 
Article XX(j) to qualify the term "short supply", and the use of the term "international supply" in 
the proviso to Article XX(j). India asserts that "[t]he Panel has not even alluded to or considered India's argumentation on this aspect".
28 Following a lengthy recitation of its arguments on this 
point, India requests the Panel "to review this aspect of its report to ensure completeness of 
analysis", and at a minimum to include "a section explaining India's line of reasoning on this aspect".
29 India reiterates the same argument in the context of commenting on the Panel's 
conclusion in paragraph 7.233  of the Interim Report (paragraph 7.234 of this Report), stating 
that the Panel "has not addressed this specific argument while arriving at its conclusion".30 The 
United States considers that, "contrary to India's assertions, the summary in the interim report included all of the arguments listed in this comment, and the Panel took those arguments into 
account in its analysis".
31 In the context of responding to India's comment on paragraph 7.233 of 
the Interim Report (paragraph 7.234 of this Report), the United States indicates that it does not understand the Panel's conclusion in this paragraph to reflect the reasoning imputed to the Panel 
by India, which is that where there is "internation al supply" of a product, there can be no "general 
or local short supply". Therefore, the United States requests that the Panel reject India's request 
to "review this aspect of its report", "include a section explaining India's line of reasoning", or engage in further "reflection" on this score. 
                                               
27 India's request for review of  the Interim Report, para. 27. 
28 India's request for review of  the Interim Report, para. 10. 
29 India's request for review of  the Interim Report, para.14. 
30 India's request for review of  the Interim Report, para. 28. 
31 United States' comments on India's request for review of the Interim Report, para. 16. WT/DS456/R 
 
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  6.40.  We consider that the reasoning in paragraphs 7.228 and 7.229 of this Report 
(corresponding to paragraphs 7.228 and 7.232 of the Interim Report) squarely addresses India's argumentation on this point. As elaborated in those paragraphs, we agree with India that Article XX(j) envisages that there could be an "international supply" of a product at the same time 
that there is "general" or "local" short supply of that product in a relevant geographical area or 
market. However, as elaborated in those paragrap hs, we do not agree with India that when there 
is an "international supply" of a product, this necessarily means that there is international supply 
of a product that can be imported into all countries  or regions, or that the quantity of the product 
is sufficient to meet the level of demand in all countries or regions. We decline India's request that we include "a section explaining India's line of reasoning on this aspect". As we have explained above, our findings summarize the parties' arguments to the extent necessary to facilitate 
understanding of our own assessment and reasoning, and do not aim to fully reproduce the 
parties' arguments as set forth in their submissions.  
6.41.  India makes additional comments related to the interplay between "general", "local", and 
"international" short supply in the context of commenting on paragraph 7.229  and footnote 520  
of the Interim Report (paragraph 7.330 and footnote 566 of this Report). India states that it "fails to understand how the examples described by the Panel in footnote 520 would satisfy the 
requirements of Article XX(j)", because "[i]n both  situations described by the Panel, there could 
well be international supply of a product, and a[n] import restriction, according to the Panel's earlier reasoning, will not be justified when it is possible to satisfy a country's demands through imports".
32 India then asserts that the Panel "has simply refused to acknowledge" the United 
States' failure to rebut India's arguments on the interplay between "general", "local", and 
"international" short supply, and provides a lengthy recitation of those arguments.33 The United 
States considers that the Panel "sufficiently considered the parties' arguments with respect to 
circumstances where a product could be available on the international market but 'in short supply' 
in a local market", and therefore requests that the Panel reject India's request that the Panel 
engage in further "reflection" on this score.34 
6.42.  We note that India's comments are essentially a recitation of its arguments regarding the 
interplay between "general", "local", and "interna tional" short supply. We understand India to be 
saying that the examples given in footnote 520 of  the Interim Report (footnote 566 of this Report) 
do not establish that there is "short supply", as in both examples, there could well be the 
possibility of that country's demand being met through imports, and under the Panel's reasoning 
and interpretation of Article XX(j), there will be no "short supply" when it is possible to satisfy demand through imports. However, the point of these hypothetical examples is simply to illustrate 
that under our interpretation of "short supply" th ere could still, contrary to India's arguments, be 
situations in which measures to address that situation could take the form of import restrictions. In these circumstances, no changes were considered necessary. 
6.43.  Apart from the foregoing comments regardin g the interplay between the terms "local short 
supply", "general short supply", and "international  supply", India makes the following additional 
comments on our analysis of Article XX(j).   
6.44.  Regarding references to India's "acknowledge ment" that there is an adequate availability of 
solar cells and modules in India, which appeared in both the first sentence of paragraph 7.221 
and the last sentence of  paragraph 7.235  of the Interim Report (paragraphs 7.221 and 7.236 of 
this Report), India states that the Panel is citing  paragraph 233 of India's first written submission 
"incorrectly as an admission by India that there are solar cells and modules adequately available in 
India". India clarifies that the statement in question  ("internationally, there is adequate availability 
of solar cells and modules") was made in the context of arguing the DCR measure complies with 
the proviso of Article XX(j), in the sense that "all countries had access to solar cells and modules, 
and that the DCR measures do not prohibit or restrict the supply of solar cells and modules that adversely affect the principle of equitable share of  these products". India requests that the Panel 
"rectify this erroneous representation of India's arguments".
35 The United States observes that the 
first sentence of paragraph 7.221 is characterizing argumentation made by the United States, not 
                                               
32 India's request for review of  the Interim Report, para. 20. 
33 India's request for review of  the Interim Report, para. 21. 
34 United States' comments on India's request for review of the Interim Report, para. 14. 
35 India's request for review of  the Interim Report, para. 18. WT/DS456/R 
 
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  argumentation proffered by India, and there is no  basis for India's suggestion that the Panel has 
misrepresented India's arguments at paragraphs 7.221 or 7.235. However, to more accurately capture the precise argumentation of the United States on this score, and to address India's 
concerns, the United States suggests a possible revision to these sentences.  
6.45.  We have modified the first sentence of paragraph 7.221 in the manner suggested by the 
United States. We have deleted the last sentence of paragraph 7.235 of the Interim Report (paragraph 7.236 of this Report), as it was not essential to our conclusion. 
6.46.  Regarding paragraph 7.226 , India states that the Panel has "paraphrased India's 
argument" that it "does not seek to maximize" ei ther "self-sufficiency" or "self-reliance", and 
requests the Panel "to complete this narration of India's argument" by reproducing the full text of paragraph 68 of its second written submission.
36 The United States did not comment on this 
request.   
6.47.  We decline India's request that we "complete this narration of India's argument". As we 
have explained above, our findings summarize the parties' arguments to the extent necessary to 
facilitate understanding of our own assessment and reasoning, and do not aim to fully reproduce 
the parties' arguments as set forth in their submissions.  
6.48.  Regarding paragraph 7.253  of the Interim Report (paragraph 7.254 of this Report), India 
requests the Panel "to place on record the centrality of India's challenge to the United States' 
argument of a singular analyst" cited in the PV Magazine article (Exhibit USA-39). In this regard, 
India "seeks to draw the Panel's attention to India's arguments in paragraphs 72-74 of India's responses to the Panel's question 62, wherein it has analysed US-39 and explained that US-39 is a 
view of one analyst , and cannot in any manner be used to dismiss the several other credible 
industry sources that are cited in IND-48".37 The United States did not comment on this request.  
6.49.  We note paragraph 7.253 of the Interim Report (paragraph 7.254 of this Report) already 
records that India "emphasizes that the two press reports that it submitted rely on several credible 
sources, including corporate officers of solar power companies and industry analysts who have made statements relating to the possibility of a short supply in solar cells and modules, and that 
the article submitted by the United States does not invalidate any of the positions taken by these 
sources". We further note that this paragraph al so already refers to India's response to Panel 
question No. 62, and to Exhibits IND-48 and IND-49. However, with a view to accommodating India's request, we have reflected India's emphasis that the press report submitted as 
Exhibit USA-39 reflects the view of only one analyst.  
6.50.  Regarding paragraph 7.262  of the Interim Report (paragraph 7.263 of this Report), India 
observes that the Panel relies on the observatio n of an analyst who has noted that residential 
consumers will be more vulnerable to short supply of solar cells and modules. India observes that 
"[t]his statement however has nothing to do with SPDs in India who are licensed generating companies in India and who cannot, under the prev ailing regulatory framework, operate anywhere 
else, or 'go where the modules go'. Any import side  disruption of solar cells and modules will first 
and foremost impact the entities that require su ch cells and modules, which are the generating 
companies."
38 The United States responds that "India mischaracterizes and misquotes the press 
report referenced by the Panel", and that "language quoted by the Panel accurately reflects the 
statement of the analyst as expressed in the press report".39 The United States observes that this 
understanding, i.e. that solar cells and modules will flow to places with the largest solar projects, is reflected in another press report submitted by India as Exhibit IND-49.
   
6.51.  We did not intend to imply, in paragraph 7.262 of the Interim Report (paragraph 7.263 of 
this Report), that Indian SPDs could relocate to respond to a shortage in solar cells and modules. 
To the contrary, we referred to the press reports submitted by India that quote industry experts as 
stating that, if there is a shortage, the "large-scale utility projects are going to be where the 
modules go", and the shortage "wou ld be on the residential side". In this case, India argues that 
                                               
36 India's request for review of  the Interim Report, para. 19. 
37 India's request for review of  the Interim Report, para. 29. 
38 India's request for review of  the Interim Report, para. 30. 
39 United States' comments on India's request for review of the Interim Report, para. 18. WT/DS456/R 
 
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  the DCR measures are aimed at the acquisition of solar cells and modules by SPDs that are 
engaged in solar power generation, i.e. large-scale utility projects, not residential consumers. In light of India's comment, we have amended paragraph 7.262 of the Interim Report (paragraph 7.263 of this Report) to clarify that what these reports suggest is that, even in the 
event of a shortage in the international supply of solar cells or modules, large-scale utility projects 
like Indian SPDs (as distinguished from residential customers) may not be affected.  
Whether the DCR measures are measures "to secure compliance with laws or 
regulations" within the meaning of Article XX(d) 
6.52.  Regarding paragraphs 7.297-7.298 of the Interim Report (paragraphs 7.298-7.299 of 
this Report), India states that the Panel "appears to be confusing two basic aspects: (i) the direct effect of international law in India; and (ii) implementing legislation to secure compliance with 
international law that is sought to be justified under Article XX(d)". India states that "[i]t is 
precisely because the international law instruments cited by India have direct effect under Indian 
law, that the Government has taken implementing measures in the form of the DCR measures to 
secure compliance with those obligations".
40 India provides a lengthy recitation of its arguments, 
and "urges the Panel to consider India's argumentation and review its findings".41 The United 
States considers that "the Panel sufficiently considered India's arguments with respect the 
applicability of Article XX(d) of the GATT 1994", incl uding those listed by India in its comments on 
these paragraphs, and therefore requests that the Panel reject India's request that the Panel give 
further consideration to India's argumentation on this score.42    
6.53.  We note that India's comments on these paragraphs appear to be a recitation of its main 
arguments under Article XX(d). The main thrust of India's comment appears to be that the 
international law instruments cited by India have "direct effect"  under Indian law, and that the 
Government has taken implementing measures in  the form of the DCR measures to secure 
compliance with those obligations. This is consistent with our understanding of India's argument, 
and almost the entirety of our analysis in se ction 7.3.3.3.1 (paragraphs 7.285-7.301 of this 
Report) is devoted to assessing this argument. In light of the foregoing, we have not made any 
changes to paragraphs 7.297-7.298 of the Inte rim Report (paragraphs 7.298-7.299 of this 
Report). 
6.54.  Regarding paragraph 7.302 , India requests the Panel to clarify that the argument 
reflected therein pertains to both the domestic and international law instruments identified by 
India. The United States did not comment on this request.  
6.55.  We have accommodated India's request, and clarified that the arguments contained in this 
paragraph pertain to both the domestic and inte rnational law instruments identified by India. 
Whether the DCR measures "essential" or  "necessary" within the meaning of 
Articles XX(j) and XX(d) 
6.56.  Regarding paragraphs 7.362-7.363 of the Interim Report (paragraphs 7.363-7.364 of this 
Report), India states that "[t]he JNNSM as a whole has been lauded as a successful programme by 
several studies" (Exhibits IND-8 and IND-9), which have "highlighted the positive impact as well as the shortcomings of the JNNSM, which are all part  of the evolutionary process of JNNSM". India 
states that it is "important that this aspect is recorded by the Panel". India submits that while 
these studies "present a balanced view of both  successes and shortcomings of the JNNSM", the 
Panel refers to these studies "selectively highlighting only the shortcomings and teething troubles of the programme including its DCR measures", and in doing so "is not reflecting the essence of 
India's arguments in this regard".
43 The United States responds that it "has never disputed that 
there are WTO-consistent elements of the JNNSM that have had positive effects on India's use of 
                                               
40 India's request for review of  the Interim Report, para. 31. 
41 India's request for review of  the Interim Report, para. 33. 
42 United States' comments on India's request for review of the Interim Report, para. 20. 
43 India's request for review of  the Interim Report, para. 35. WT/DS456/R 
 
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  solar power", but that these are not at issue in this dispute.44 The United States therefore requests 
that the Panel reject India's request to "record" positive aspects of the JNNSM. 
6.57.  We recall that this dispute concerns the WTO-consistency of certain DCR measures 
maintained under the National Solar Mission. As ex plained in paragraph 7.22 of this Report, India 
itself objected to the various references in th e United States' first written submission to a 
purported "JNNSM programme", and argued that these references represented an attempt by the United States to widen the scope of the terms of reference of the Panel to seek findings on the 
Jawaharlal Nehru National Solar Mission (JNNSM) "as a whole", or potential or future measures 
under the JNNSM. Further, as noted in paragraph 7.188 of this Report, "the parties' arguments reflect a shared understanding that what needs to be justified under Article XX of the GATT 1994 is not the National Solar Mission as a whole, but rather the DCR measures at issue". In light of the 
foregoing, we do not see why paragraphs 7.362-7.363  of the Interim Report (paragraphs 7.363-
7.364 of this Report), which consider the extent to which the challenged DCR measures contribute to their objective, need to "present a balanced view of both successes and shortcomings" of the 
National Solar Mission "as a whole". Accordingly, we decline India's request.  
6.58.  India states that it has submitted eviden ce on the growth of manufacturing capacity in 
India, "which the Panel appears to have ignored".
45 In this regard, India refers to the Phase II 
Policy Document, JNNSM,  (December 2012), paragraph 1.3.10, last bullet point (Exhibit USA-3). 
India emphasizes that it also explained that it is  undertaking regular review and evaluation of the 
domestic manufacturing capacity with a view to assessing the growth in its domestic manufacturing capacity. India states that the DCR measures "therefore have a clear role in relation 
to development of India's domestic manufacturing capacity".
46 The United States did not comment 
on this point. 
6.59.  We have sought to accommodate India's comment by amending paragraph 7.363  of the 
Interim Report (paragraph 7.364 of this Report) to reflect the statement contained in 
paragraph 1.3.10, last bullet point, of Exhibit U SA-3. The last bullet point reads, "Provision of 
requirement of domestic content for setting up sola r power projects was kept in the guidelines for 
Phase-I with a view to develop indigenous capacities and generate employment. It was noted that 
the production capacities for solar PV cells and modules have expanded in the country." We have also reflected the statement, contained in the same document, that "there is no significant capacity utilization despite [the] addition of manuf acturing capacity as observed during Phase I". 
In our view, neither of these statements alters the conclusion that "the information before the 
Panel concerning the effect of the DCR measures on increasing domestic manufacturing capacity of solar cells and modules appears to cast doubt on whether such effect is positive". 
6.60.  Regarding paragraph 7.364  of the Interim Report (paragraph 7.365 of this Report), India 
requests the Panel "to review its assertion that India has not provided evidence on manufacturing capacity for wafers and polysilicon material", on  the grounds that it has provided "validated 
information" on India's emerging capacity, which is not refuted by the United States, and there is 
"nothing under WTO law which says that ever y utterance by the Government needs to be 
supported by a documentary exhibit". India fu rther notes that the Panel "appears to have 
completed ignored" India's response to a question on "the issue of raw materials supply raised by 
it", and India proceeds to reproduce its response.
47 The United States did not comment on this 
point. 
6.61.  We have sought to accommodate India's comment by amending paragraph 7.364 of the 
Interim Report (paragraph 7.365 of this Report) to clarify that India did not assert (as opposed to 
prove) that Indian companies could supply the requ ired products necessary to produce and put to 
use solar cells and modules in the event of a disruption in imports of wafers, polysilicon materials, 
and other raw materials. Regarding India's statement that the Panel "appears to have completely 
ignored" India's response to a question on "the issue of raw materials supply raised by it", we note that the paragraph in question refers to, and quotes directly from, India's response to this question.  
                                               
44 United States' comments on India's request for review of the Interim Report, para. 22. 
45 India's request for review of  the Interim Report, para. 38. 
46 India's request for review of  the Interim Report, para. 38. 
47 India's request for review of  the Interim Report, para. 37. WT/DS456/R 
 
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  6.62.  Regarding paragraph 7.367  of the Interim Report (paragraph 7.368 of this Report), India 
states that the Panel's reasoning in this conclusi on, and the paragraphs preceding it, "ignore[] the 
basic line of reasoning presented by India, wh ich is not that DCR measures will guarantee the 
outcome of affordable supply of solar cells and modules needed to generate solar power". India 
then provides a lengthy recitation of its arguments on the rationale of the DCR measures, and 
states that the Panel "needs to acknowledge and record India's line of reasoning", rather than "brush it away with a single stroke as India has not met the very high threshold of DCR measures 
'guaranteeing' the outcome of Indian SPDs having access to a continuous and affordable supply of 
solar cells and modules".
48 After repeating that the DCR measures "have a clear role in relation to 
development of India's domestic manufacturing capaci ty", India then states that they "are the only 
way in which India can 'guarantee' that manufacturing units for solar cells and modules are 
actually set up in India, and achieve the obje ctive of energy security by creation of a 
manufacturing base for solar cells and modules".49 The United States considers that nowhere in 
the Report does the Panel impute to India the argument that the DCR measures at issue will 
"guarantee" that Indian solar power developers have continuous access to an affordable supply of 
solar cells and modules, nor does the United States understand the Panel to reason that the DCR measures would have to "guarantee" continuous access to solar cells and modules in order for the 
DCRs to be found "essential" for purposes of Article XX(j), or "necessary" for purposes of 
Article XX(d). Accordingly, the United States requests that the Panel reject India's "vague request to modify paragraph 7.367 to 'acknowledge and record' certain arguments".
50  
6.63.  We stated, in paragraph 7.367 of the Interim Report (paragraph 7.368 of this Report), that 
"India has not demonstrated that the DCR measures ensure that Indian SPDs have access to a 
continuous and affordable supply of the solar cells and modules needed to generate solar power, in the sense that they guarantee this outcome". We considered it relevant to refer to the DCR 
measures not "guaranteeing" this outcome in light of  the fact that India appears to apply this high 
threshold to the alternative measures identified by  the United States (see paragraph 7.373 of this 
Report). However, we do not wish to imply that the DCR measures would have to "guarantee" 
continuous access to solar cells and modules in order for the DCRs to be found "essential" for 
purposes of Article XX(j) (or "necessary" for purposes of Article XX(d)). We have therefore deleted the reference to the DCR measures not "guaranteeing" that Indian SPDs have access to a continuous and affordable supply of the solar cells and modules needed to generate solar power. 
As we have explained above, our findings su mmarize the parties' arguments to the extent 
necessary to facilitate understanding of our own assessment reasoning, and do not aim to fully reproduce the parties' arguments as set forth in their submissions. We therefore decline India's 
request that the Panel "needs to acknowledge and record India's line of reasoning". 
6.64.  Regarding paragraph 7.372 of the Interim Report (paragraph 7.373 of this Report), India 
notes that the Panel refers to the United States' argument that solar cells and modules have a 25 
year warranty and the need for intelligent stockpiling, and states that it "has addressed and 
refuted both these points". India provides a leng thy recitation of its arguments on the issue of 
stockpiling, which it "requests the Panel to place on record in its reasoning to ensure completeness of the parties' arguments".
51 The United States considers that "the Panel has adequately 
summarized the parties' arguments and evidence regarding the viability of stockpiling solar cells 
and modules".  In any event, the United States indicates that because the Panel did not make any substantive findings with regard to the issue to which these arguments relate, it is "difficult to see 
the point of augmenting the summary of India's arguments".  Accordingly, the United States 
requests that the Panel "reject India's request to 'place on record' additional Indian argumentation 
on the viability of stockpiling solar cells and modules".
52 
6.65.  We decline India's request to record its argumentation on stockpiling set forth in its 
comments on paragraph 7.372 of the Interim Report (paragraph 7.373 of this Report). As we have explained above, our findings summarize the parties' arguments to the extent necessary to facilitate understanding of our own assessment and reasoning, and do not aim to fully reproduce 
the parties' arguments as set forth in their submissions.  
                                               
48 India's request for review of  the Interim Report, para. 41. 
49 India's request for review of  the Interim Report, para. 44. 
50 United States' comments on India's request for review of the Interim Report, para. 26. 
51 India's request for review of  the Interim Report, para. 45. 
52 United States' comments on India's request for review of the Interim Report, para. 27. WT/DS456/R 
 
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  7  FINDINGS 
7.1  General considerations relating to the measures at issue 7.1.1  Factual description of  the measures at issue  
7.1.  The claims brought by the United States co ncern certain domestic content requirements (the 
DCR measures)
53 imposed under India's Jawaharlal Nehru National Solar Mission (National Solar 
Mission, or JNNSM). The objective of the National Solar Mission is stated as being "to establish India as a global leader in solar energy, by creating the policy conditions for its diffusion across the 
country as quickly as possible".
54 It was launched by the Government of India in 2010, with the 
aim of generating 20,000 megawatts (MW) of grid-connected solar power capacity by 2022.55 
India subsequently increased that target to 100,000 MW of grid-connected solar power capacity by 2022.
56  
7.2.  As a means to promote the generation of th is capacity, the Government of India enters into 
long-term power purchase agreements (PPAs) with solar power developers (SPDs).57 Under a PPA, 
India purchases solar power generated by a particular SPD. Each PPA provides a guaranteed rate 
for a 25-year term at which the electricity generated by the SPD is bought by India.58 The rates 
guaranteed under PPAs are determined by two In dian electricity regulatory commissions, the 
Central Electricity Regulatory Commission at the national level, and the State Electricity Regulatory 
Commission at each state level.59 India resells the electricity that it purchases to downstream 
distribution utilities (also termed "Discoms")60, which in turn resell it to the ultimate consumer 
(e.g. household, industrial, or governmental entities).61 The flow of electricity generated under the 
National Solar Mission is as follows62:  
 
7.3.  In seeking to achieve the National Solar Mission's overall target of 100,000 MW of grid-
connected solar power capacity, India is progressively entering into more PPAs over time to 
                                               
53 In its submissions, the United States generally characterizes the measures at issue as the "domestic 
content requirements", or "DCRs". India also characterizes the measures as the "domestic content requirements", or "DCR Measures". Some of the Na tional Solar Mission documents setting forth these 
measures also refer to them as th e "domestic content requirements". See fns 78, 83, and 87 below. In this 
Report, we adopt the parties' nomencla ture and refer to the measures as the "DCR measures". This does not 
prejudge the Panel's consideration of the substanc e of the parties' argume nts in this dispute. 
54 Resolution, Jawaharlal Nehru National Solar Mission , Ministry of New and Renewable Energy 
(11 January 2010), (Exhibit USA-4), paras. 1 and 2.  
55 Ibid. paras. 1 and 2. With regard to the concept of a "grid", the panel in Canada – Renewable Energy 
/ Feed-in Tariff Program  explained that "[e]lectricity is delivered to consumers through the operation of a vast 
integrated infrastructure of high-vol tage transmission lines (connecting ge nerators to distributors and large 
consumers) and lower-voltage distribution lines that ultima tely link to individual co nsumers. This is generally 
referred to as a grid." Panel Reports, Canada – Renewable Energy / Feed-in Tariff Program , para. 7.11.  
56 India's first written submission, para. 28, and India's response to Panel question No. 5 (citing India to 
boost national solar target to 100 GW by 2022- reports , PV-Tech, (17th November, 2014), (Exhibit IND-4); Fact 
Sheet: U.S. and India Climate and Clean Energy Cooperation, The White House, Office of the Press Secretary 
(25 January 2015), (Exhibit IND-30); and Press Information Bureau, Government of India, Modi Government is 
Committed to Provide Affordable and Clean Power 24x7 for all  (12 January 2015), (Exhibit IND-37). 
57 This is not necessarily the only means being pursued to seek to achieve this target. See India's first 
written submission, para. 38; India's response to Panel question No. 8. 
58 United States' first written submission, paras. 34, 36, and 37; India's first written submission, 
para. 116. 
59 India's first written submission, para.148. The United States does not contest the tariff setting by 
CERC/SERC as explained by India. 
60 "Distribution Utilities", also termed "Discoms", are entities that sell electricity directly to commercial 
and retail end users in India. There are currently 61 distribution utilities in India. See  State Electricity Utilities , 
Central Electricity Regulatory Commission, (Exhibit USA-11) .  
61 United States' first written submission, para. 15; India's first written submission, para. 151.  
62 United States' first written submission, para. 15; India's first written submission, para. 152. WT/DS456/R 
 
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  incrementally add more grid-connected solar power capacity. Specifically, the National Solar 
Mission is being implemented in several successive "Phases", with each Phase initiated thus far being further divided into "Batches". As each PPA  remains in force for 25 years, the total number 
of PPAs in place has increased as new Batches are concurrently implemented: (a) in 2010-2011, 
under Phase I (Batch 1), India commissioned a total of 140 MW of solar power capacity by 
entering into 28 PPAs
63; (b) in 2011-2012, under Phase I (Batch 2), India commissioned an 
additional 330 MW of solar power capacity by entering into an additional 27 PPAs64; and (c) in 
2013-2014, under Phase II (Batch 1), India commi ssioned an additional 750 MW of solar power 
capacity through an additional 47 PPAs.65  
7.4.  The Ministry of New and Renewable Energy of India (MNRE) is the Indian central government 
ministry responsible for "all matters relating to renewable energy".66 MNRE issued the Guidelines  
documents setting forth the terms and conditions governing each of the three Batches. Under the 
first two Batches, i.e. Phase I (Batch 1) and Phas e I (Batch 2), MNRE selected NTPC Vidyut Vyapar 
Nigam Limited (NVVN) to act as the agency respon sible for implementing the solar power project 
selection process, including but not limited to issuing the Request for Selection  document 
governing selection of solar power projects. NVVN served as the government party in the individually executed PPAs. For Phase II (Batch 1) , MNRE selected the Solar Energy Corporation of 
India (SECI) to perform the same functions th at NVVN performed in respect of Phase I.  
7.5.  NVVN is a wholly-owned subsidiary of the state-owned National Thermal Power Corporation 
(NTPC).
67 SECI is a "Government of India enterprise" under the administrative control of the 
MNRE.68 India states that "[b]oth NVVN and SECI, … have been specifically designated as the 
implementing agencies for Phase I (Batch [1] and Batch [2]) and Phase II (Batch [1]) respectively 
and are entities acting for and on behalf of Government of India".69 Both parties agree that NVVN 
and SECI are properly characterized as "governmental agencies" whose actions are attributable to 
India.70  
7.6.  The terms and conditions governing each Ba tch are set out in several documents, including: 
(a) the Guidelines  document71 governing each Batch (setting out the requirements concerning 
solar power project eligibility, the bid submission process for SPDs, technical specifications, and 
contract issuance); (b) the Request for Selection  document72 governing the selection process 
(which incorporates provisions of the Guidelines  and sets out further details regarding the 
application process, standard terms and conditions applicable to solar power projects, and 
technical specifications); (c) the "model PPA" (which incorporates provisions of the Guidelines  and 
                                               
63 India's response to Panel question No. 7(a). 
64 India's response to Panel question No. 7(a). 
65 India's response to Panel question No. 6(c). 
66 Introduction  on the Ministry of New and Renewable Energy website , (Exhibit USA-28).  
67 United States first written submission, para. 19; India's first written submission, paras. 128-129. 
68 United States first written submission, para. 20; India's first written submission, para. 130. 
69 India's first written submission, para. 131.  
70 Parties' responses to Panel question No. 2. 
71 For the Guidelines  documents under Phase I (Batch 1), Phase I (Batch 2), and Phase II (Batch 1), see 
respectively, Guidelines for Selection of New Grid Connected Solar Power Projects , Ministry of New and 
Renewable Energy (July 2010) ("Phase I (Batch 1) Guidelines" ), (Exhibit USA-5); Guidelines for Selection of 
New Grid Connected Solar Power Projects , Batch II , Ministry of New and Renewable Energy (24 August 2011) 
("Phase I (Batch 2) Guidelines" ), (Exhibit USA-6); and Guidelines for Implementation  of Scheme for Setting up 
of 750 MW Grid-Connected Solar PV Power Projects Under Batch-1, Jawaharlal Nehru National Solar Mission , 
Ministry of New and Renewable Energy (October 2013) ("Phase II (Batch 1) Guidelines" ), (Exhibit USA-7). 
72 For the Request for Selection documents under Phase I (Batch 1), Phase I (Batch 2), and Phase II 
(Batch 1), see respectively, Request for Selection Document for Ne w Grid Connected Solar Photo Voltaic 
Projects Under Phase 1 of JNNSM , NTPC Vidyut Vyapar Nigam Limited  (18 August 2010) ("Phase I (Batch 1) 
Request for Selection  document "), (Exhibit USA-15); Request for Selection Docume nt for New Grid Connected 
Solar Photo Voltaic Projects Under Phase 1, Batch II of JNNSM , NTPC Vidyut Vyapar Nigam Limited 
(24 August 2011) ("Phase I (Batch 2) Request for Selection  document "), (Exhibit USA-17); and Request for 
Selection (RfS) Document for 750 MW Grid Connected Solar Photo Voltaic Projects Under JNNSM Phase II Batch-I , Solar Energy Corporation of India (28 October 2013) ("Phase II (Batch 1) Request for Selection  
document "), (Exhibit USA-12). WT/DS456/R 
 
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  Request for Selection  documents by reference, and which forms the basis for each individually 
executed PPA)73; and (d) the individually executed PPAs (based on the model PPA).74  
7.7.  A mandatory domestic content requirement was imposed on SPDs participating in Phase I 
(Batch 1), Phase I (Batch 2), and Phase II (Batch 1). For each Batch, the applicable domestic 
content requirement was initially set forth in the Guidelines  document and reproduced in the 
Request for Selection  document. The applicable domestic content requirement was then reaffirmed 
in the model PPA and all of the individually executed PPAs in each Batch75, and further 
implemented through a "specific plan"76 that SPDs had to submit after entering into the PPA, 
specifying how they would meet the requirements of the applicable DCR measure. As elaborated 
below, the scope and coverage of the applicable DCR measure differed across the three Batches.  
7.8.  Under Phase I (Batch 1), it was mandatory for all projects based on crystalline silicon (c-Si) 
technology to use c-Si modules  manufactured in India, while the use of foreign c-Si cells and 
foreign thin-film modules or concentrator photovoltaic (PV) cells was permitted. This DCR measure was set forth in the Guidelines
77 and reproduced in the Request for Selection  document.78 The 
Request for Selection  document further provides that SPDs submitting a bid must certify that they 
will furnish, within 180 days of the signing of th e PPA, a "Specific plan for meeting the requirement 
of domestic content in case of projects based on Crystalline Silicon Technology".79 Paragraph (B) of 
the preamble of the model PPA for Phase I (Batch 1)  states that the SPD is selected "after meeting 
the eligibility requirements".80 It is not in dispute that these eligibility requirements include the 
relevant provisions of the Guidelines  and Request for Selection  documents setting forth the 
applicable DCR measure.81  
7.9.  Under Phase I (Batch 2), it was mandatory for all projects based on c-Si technology to use c-
Si cells and modules  manufactured in India, while the use of domestic or foreign modules made 
from thin-film technologies or concentrator PV  cells was permitted. This DCR measure was set 
                                               
73 The United States asserts, and India does not dispute, that individually executed PPAs are based on 
the model PPA. United States' first written submission, paras.  24 and 41. For the mode l PPAs used for Phase I 
(Batch 1), Phase I (Batch 2), and Phase II (Batch 1), see respectively, Draft Standard Power Purchase 
Agreement for Procurement of __ MW  Solar Power on Long Term Basi s (Under New Projects Scheme) , NTPC 
Vidyut Vyapar Nigam Limited (18 August 2010) ("Phase I (Batch 1) model PPA "), (Exhibit USA-16); Draft 
Standard Power Purchase Agreement fo r Procurement of __ MW Solar Power on Long Term Basis (Under New 
Projects Scheme)(Second Batch) , NTPC Vidyut Vyapar Nigam Limited ( 23 August 2011) ("Phase I (Batch 2) 
model PPA "), (Exhibit USA-18); and Draft Standard Power Purchase Agreement for Procurement of___MW 
Solar Power on Long Term Basis und er JNNSM, Phase II, Batch I Scheme , Solar Energy Corporation of India 
(30 November 2013) ("Phase II (Batch 1) model PPA "), (Exhibit USA-19). 
74 The United States submitted a list of the projects selected under Phase I (Batch 1), Phase I (Batch 2), 
and Phase II (Batch 1). See respectively, List of Selected Projects , NTPC Vidyut Vyapar Nigam Limited, 
undated, (Exhibit USA-21); List of Solar PV Projects under JNNSM Ph ase I Batch II Achieved Financial Closure 
as Per Schedule , NTPC Vidyut Vyapar Nigam Limited, (Exhibit USA-22); and Notification Regarding Selected 
Projects of 750 MW Grid Connected Solar PV Projects Under JNNSM Phase-II Batch-I , Solar Energy Corporation 
of India (February 25, 2014), (Exhibit USA-23). 
75 See fns 81, 85 and 89 below. 
76 Phase I (Batch 1) Request for Selection  document, (Exhibit USA-15), pp. 52; Phase I (Batch 2) 
Request for Selection  document, (Exhibit USA-17), pp. 59; and Phase II (Batch 1) Request for Selection  
document, (Exhibit USA-12), pp. 71. 
77 Phase I (Batch 1) Guidelines , (Exhibit USA-5), Section 2.5.D (entitled "Domestic Content", and stating 
that "in the case of Solar PV Projects to be selected in first batch during FY 2010-11, it will be mandatory for Projects based on crystalline silicon technology  to use the modules manufactured in India"). 
78 Phase I (Batch 1) Request for Selection  document, (Exhibit USA-15), Section 3.3 (entitled "Domestic 
Content", and stating that "For Solar PV  Projects it will be mandatory for Projects based on crystalline silicon 
technology to use the modules manufactured in India while there will be no mandatory domestic content 
requirement for Projects base d on other technologies"). 
79 Phase I (Batch 1) Request for Selection  document, (Exhibit USA-15), pp. 23 and 52. 
80 Phase I (Batch 1) model PPA, (Exhibit USA-16), paragraph (B) of the preamble. 
81 See United States' response to Panel question No. 11. Based on its response to Panel question 
No. 1(c), we understand In dia to be of the view that compliance with the relevant provisions of the Guidelines  
and Request for Selection  documents setting forth the applicab le DCR measure is also covered by 
Section 3.1(g) of the model PPA, which provides that "[t]he SPD shall fulfil the technical requirements according to criteria mentioned under Clause 2.5(B) & 3.5(B) of JNNSM guidelines for selection of new projects and produce the documentary evidence of the same."  Phase I (Batch 1) model PPA, (Exhibit USA-16), 
Section 3.1(g). WT/DS456/R 
 
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  forth in the Guidelines82 and reproduced in the Request for Selection  document.83 Paragraph (B) of 
the preamble of the model PPA for Phase I (Batch 2) states that the SPD has been selected "after meeting the eligibility requirements".
84 It is not in dispute that these include the relevant 
provisions of the Guidelines  and Request for Selection  documents setting forth the applicable DCR 
measure.85  
7.10.  Phase II (Batch 1) is divided into two parts. Projects selected under "Part A" are subject to a 
DCR measure, whereas projects selected under "Part B" are not. The SPD bidding for a PPA can 
elect to bid for "Part A" or "Part B", or submit separate bids in the event it wishes to bid under 
both categories. The scope of the United States' challenge under Phase II (Batch 1) is confined to the DCR measure imposed under Part A.
86 Under Phase II (Batch 1-A), any solar cells and modules 
used by the SPDs must be made in India, irrespective of the type of technology used. This DCR 
measure was set forth in the Guidelines87 and was reproduced in the Request for Selection  
document.88 The model PPA for Phase II (Batch 1) refers to the requirements of the Request for 
Selection  and expressly states that SECI shall have the right to terminate the Agreement if an SPD 
fails to "specify their plan for meeting the requirement for domestic content".89  
7.11.  By their terms, the Guidelines  and Request for Selection  documents for each Batch make 
clear that the DCR measure for that Batch is "mandatory". Neither party has suggested that there 
is any discretion as to whether the applicable DCR measure will be imposed, or whether it must be 
complied with, in the resulting bidding/selection process.90 Rather, India explains that it would be 
possible for the Guidelines  to have no legal impact if no action were taken after the Batch was 
initiated, i.e. if there were no subsequent biddi ng/selection process. India also points out that 
there is a power of "review and amendment", and to "remove difficulties", but explains that it has 
not been used to date in respect of the applicable domestic content requirements.91   
7.12.  However, while the DCR measure for each Batch is mandatory in nature, the scope and 
coverage of the applicable DCR measure did not extend to all types of cells, modules, and/or 
                                               
82 Phase I (Batch 2) Guidelines , (Exhibit USA-6), Section 2.5.D (entitled "Domestic Content", and stating 
that "[f]or Solar PV Projects to be selected in second batch during FY 2011-12, it will be mandatory for all the Projects to use cells and modules manufactured in Indi a. PV Modules made from th in-film technologies or 
concentrator PV cells may be sourced from any country, provided the technical qualification criterion is fully 
met.") 
83 Phase I (Batch 2) Request for Selection  document, (Exhibit USA-17), Section 3.E (entitled "Domestic 
Content", and stating "[f]or Solar PV Pr ojects to be selected in second ba tch during FY 2011-12, it will be 
mandatory for all the Projects to use cells and modules manufactured in India"), and Format 6.7 (stating that 
details that must be furnished within 210 days of the si gning of the PPA include "Specific plan for meeting the 
requirement of domestic content in case of proj ects based on Crystallin e Silicon Technology"). 
84 Phase I (Batch 2) model PPA, (Exhibit USA-18), paragraph (B) of the preamble. 
85 See United States' response to Panel question No. 11. Based on its response to Panel question 
No. 1(c), we understand In dia to be of the view that compliance with the relevant provisions of the Guidelines  
and Request for Selection  documents setting forth the applicab le DCR measure is also covered by 
Section 3.1(f) of the model PPA, which provides that "[t]he SPD shall fulfill the technical requirements according to criteria mentioned under Clause 2.5(B) of JNNSM guidelines for selection of new projects and 
produce the documentary evidence of the same." Phase I (Batch 2) model PPA, (Exhibit USA-18), 
Section 3.1(f). 
86 United States' response to Pane l question No. 12(c), para. 23. In our Report, we refer to "Phase II 
(Batch 1-A)" when referring specifically to Part A of Batch 1 of Phase II, and to "Phase II (Batch 1)" when 
referring collectively to Parts A and B.  
87 Phase II (Batch 1) Guidelines , (Exhibit USA-7), Section 2.6.E (entitled "Domestic Content 
Requirement", stating that "Out of the total capacity of 750 MW under Batch-I Phase-II, a capacity of 375 MW will be kept for bidding with Domestic Content Requirement (DCR).  Under DCR, the solar cells and modules 
used in the solar PV power plants must both be made in  India. The Developers at the time of bidding may opt 
for either "DCR" or "Open" or both the categories.") 
88 Phase II (Batch 1) Request for Selection  document, (Exhibit USA-12), Section 3.E (entitled "Domestic 
Content Requirement (Applicable for Projects under Pa rt-A only)", and stating "[f]or Projects to be 
implemented under Part-A (375 MW), both the solar cells and modules used in the Solar Power Projects must be made in India."), and Format 6.10 (entitled "Format for Technical Criteria"), stating that details that must be furnished within 210 days of the signing of the PPA include "Specific plan for meeting the requirement of 
domestic content for cells and modules is to be submitted"). 
89 Phase II (Batch 1) model PPA, (Exhibit USA-19), Sections 3.1(g) and 3.2.1. 
90 United States' response to Pane l question No. 1(a); India's response to Panel question No. 1.  
91 India's response to Panel question No. 1. WT/DS456/R 
 
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  projects.92 As described above, SPDs could use foreign cells and/or modules and still comply with 
the applicable DCR measure in Phase I (Batch 1) and Phase I (Batch 2), provided they used the 
types of foreign cells and/or modules that fell ou tside of the scope and coverage of the applicable 
DCR measures (i.e. foreign c-SI cells and foreign thin-film modules or concentrator PV cells for 
Batch 1, and domestic or foreign thin-film modules and concentrator PV cells for Batch 2). In 
addition, recalling that only projects selected under "Part A" of Phase II (Batch 1) are subject to a DCR measure, SPDs could use foreign cells and/or modules and still comply with the applicable 
DCR measure in Phase II (Batch 1) by bidding only for projects under Part B of Batch 1.  
7.13.  India informed the Panel that many of th e SPDs that entered into PPAs are in fact using 
foreign cells and/or modules. According to India, 14 PPAs totalling 70 MW of solar power capacity used foreign cells and/or modules in Phase I (Batch 1), while the remaining 14 PPAs in Phase I 
(Batch 1), also totalling 70 MW, used Indian ce lls and/or modules; 19 PPAs totalling 260 MW of 
solar power capacity used foreign cells and/or modules in Phase I (Batch 2), while the remaining 8 PPAs in Phase I (Batch 2), totalling 70 MW, used Indian cells and/or modules.
93 Under Phase II 
(Batch 1), India commissioned 750 MW of solar po wer capacity through 47 PPAs. Twenty-two of 
these PPAs were entered into under Part A, totalling 375 MW; the other 25 PPAs, also accounting for 375 MW, were entered into under Part B. As pe r the scope of the applicable DCR measure, all 
of the PPAs under Part A used domestic cells an d modules. According to India, all of the PPAs 
under Part B used foreign cells and modules.
94 
7.14.  The following table summarizes the factual aspects of the DCR measures at issue in this 
dispute:  
Phase & 
Batch Agency Project 
selection 
period Foreign 
c-Si 
modules 
permitted Foreign c-
Si cells 
permitted Foreign 
Thin-film 
modules or 
concentra-
tor PV cells 
permitted Total 
# 
PPAs Using 
foreign 
cells 
and/or 
modules Using 
Indian 
cells 
and/or 
modules 
Phase I 
(Batch 1) MNRE 
& NVVN 2010-
2011 No Yes   Yes 28 14 PPAs 
(70MW) 14 PPAs 
(70MW) 
Phase I 
(Batch 2) MNRE 
& NVVN 2011-
2012 No Yes 27 19 PPAs 
(260MW) 8 PPAs 
(70MW) 
Phase II 
(Batch 1-A) MNRE 
& SECI 2013-
2014 No 22 0 22 PPAs 
(375MW) 
 
7.1.2  Wider policy objectives and fa ctual context of the DCR measures 
7.15.  The JNNSM Mission Document states that the National Solar Mission aims "to promote 
ecologically sustainable growth while addressing Indi a's energy security challenge", and that it will 
"constitute a major contribution by India to the global effort to meet the challenges of climate change".
95  
7.16.  Regarding the objective of "energy securi ty", India refers to the International Energy 
Agency (IAE) definition of "the uninterrupted av ailability of energy sources at an affordable 
price".96 India also refers to a report by the United Nations Development Programme, which 
similarly defines energy security as "the contin uous availability of energy in varied forms in 
sufficient quantities at reasonable prices".97 India refers to several other documents discussing 
                                               
92 United States' response to Panel question No. 12. 
93 India's response to Panel question No. 7(a).  
94 India's response to Panel question No. 6(c). 
95 Jawaharlal Nehru National Solar Mission: Towards Building Solar India , Ministry of New and 
Renewable Energy ("JNNSM Mission Document"), (Exhibit IND-1). 
96 India's first written submission, para. 188 (citing International Energy Agency, Energy Security 
(Exhibit IND-24)). 
97 India's first written submission, para. 188 (citing United Nations Development Programme, World 
Energy Assessment: Energy and the Challenge of Sustainability (September, 2000)). WT/DS456/R 
 
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  different aspects of energy security, including th e Model of Short-Term Energy Security (MOSES) 
developed by the IEA98, a report on Energy Security and Sustainable Development in the Asia and 
the Pacific  prepared by the United Nations Economic and Social Commission on the Asia and the 
Pacific99, and a Green Paper: Towards a European Strategy for the Security of Energy Supply  
prepared by the European Communities.100 India also refers to its own Integrated Energy Policy , 
which affirms the need to "supply lifeline energy to all our citizens irrespective of their ability to pay for it as well as meet their effective demand for safe and convenient energy to satisfy their 
various needs at competitive prices, at all times and with a prescribed confidence level considering 
shocks and disruptions that can be reasonably expected".
101 As India puts it, the Integrated 
Energy Policy  confirms that "one of the main goals for India is to secure the assured supply of 
environmentally sustainable energy and technologies at all times".102  
7.17.  In its submissions, India stresses the obje ctives that guide the National Solar Mission, 
including the attainment of energy security, ensuri ng ecologically sustainable growth, and ensuring 
sustainable development.103 India argues that the DCR measures need to be analysed in the 
context of those objectives.104 Likewise, India argues that the DCR measures need to be seen in 
the context of India's overall energy scenario and the challenges it is currently facing, which are 
characterized by India's rising energy deficit, as well as its dependence on fossil fuels and 
imported materials for its energy requirements.105 
7.18.  In its submissions, the United States noted that increasing the use of solar energy is a 
laudable goal that the United States and many other WTO Members share106, and that it supports 
the environmental and developmental aims and objectives of the National Solar Mission.107 The 
United States further stated that "it does not question that the acquisition and distribution of solar 
cells and modules to Indian SPDs, and ensuring domestic resilience against supply-side disruptions, are important"
108, and that it "raises no objection to India's aspiration to increase the 
local manufacture of solar cells and modules".109 Likewise, the European Union states that it "does 
not contest the general purpose of the National Solar Mission as helping promote electricity supply from renewable energy sources and, in particular, solar energy", that such a purpose is 
"legitimate", and that it "does not question the importance of objectives such as energy security 
and sustainable development". 
                                               
98 India's first written submission, paras. 198-200 (citing Measuring Short-term  Energy Security,  
OECD/IEA (2011), (Exhibit IND-26)). 
99 India's first written submission, paras. 202 (citing Energy Security and Sustainable Development in 
the Asia and the Pacific , United Nations Economic and Social Commission on the Asia and the Pacific (April 
2008), (Exhibit IND-19)). 
100 India's first written submission, para. 192 (citing European Commission, Green Paper: Towards a 
European Strategy for the Security of Energy Supply , (29 November 2000)). 
101 India's first written submission, para. 189 (citing (citing Integrated Energy Policy 2006 , Planning 
Commission, Government of India, (2006), (Exhibit IND-22), at para 4.1(2)). 
102 India's first written submission, para. 195 (citing Integrated Energy Policy 2006 , Planning 
Commission, Government of India, (2006) (Exhibit IND-22), p . xiii). 
103 India's first written submission, paras. 2, 136-143, 168-207, 209, 236, 262, and 272. 
104 India's first written submission, paras. 166, 168; India's closing statement at the first meeting of the 
Panel, para. 9; India's response to Panel question Nos. 25(b), 29(a); India's second written submission, 
para. 61; India's response to Panel question No. 65, para. 78, and No. 69(a), para. 68.  
105 India's first written submission, paras. 137, 142, and 220; India's opening statement at the first 
meeting of the Panel, para. 33; India's second written submissions, para. 28, 106. See India, United States 
Energy Information Administration (26 June 2014), (Exhibit IND-15), at p. 2 (stating that " India's per capita 
energy consumption is one-third of the global average, according to the International Energy Agency (IEA)"); 
National Electricity Plan, Central Electricity Authority, (January, 2012), (Exhibit IND-16), p. 1 (stating that 56% 
of households in rural areas do not have access to electr icity, and that "per capita electricity consumption in 
India is 24% of the world's average and 35% & 28%  respectively of that of China and Brazil); Report of the 
Working Group on Power for the 12th Plan 2012-2017 , Ministry of Power (January 2012), (Exhibit IND-18), 
Chapter 1, Table 1.4 (containing data that the actu al power supply all over India in 2010-11 was 789,013 MU 
as compared to the energy requirement of 862,125 MU, resulting in an energy deficit of -8.5%).  
106 United States' first written submission, para. 1; United States' opening statement at the second 
meeting of the Panel, para. 43; United States' response to Panel question No. 69(c), para. 69. 
107 United States' opening statement at the first meeting of the Panel, para. 2; United States' opening 
statement at the second meeting of the Panel, para. 2.  
108 United States' second written submission, para. 42.  
109 United States' second written submission, para. 43.  WT/DS456/R 
 
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  7.19.  Our analysis of the DCR measures proceeds on the understanding that it is the WTO-
consistency of those measures, and not the legitima cy of the policy objectives pursued through the 
National Solar Mission, that is in dispute in this case. India's argumentation regarding the wider policy objectives and factual context of the National Solar Mission relates to the rationale for, and 
objective behind, the measures at issue. We will take India's policy objectives and the wider 
factual context into account in the course of our analysis insofar as we conclude that they are legally relevant to our interpretation and application of the relevant articles of the covered 
agreements raised by the parties' claims and defences.  
7.1.3  Request for a preliminary ruling on the measures at issue  7.20.  In its first written submission, India argued that the United States was seeking to challenge 
aspects of the National Solar Mission that in India's view did not, for various reasons, fall within 
the scope of the Panel's terms of reference. India requested that the Panel make a preliminary 
ruling upholding its view that those aspects of the National Solar Mission fell outside of the Panel's terms of reference. India requested that the Panel make this preliminary ruling prior to the first 
substantive meeting with the parties.  
7.21.  At the invitation of the Panel, the Unit ed States provided a response in writing on 
8 January 2015 to India's request for a preliminary ruling. Third parties were also invited to 
comment on India's request in their third-party submissions. In its response, the United States 
clarified that it was, at that time, only seeking to challenge those measures that India agreed are covered by the panel request and the Panel's terms of reference. On 16 January 2015, the Panel sent the following communication to the parties and third parties:  
In its first written submission of 5 December 2014, India requested a preliminary 
ruling with respect to the measures covere d by the Panel's terms of reference. The 
United States responded to this request on 8 January 2015 and thereby clarified the 
measures for which it seeks legal findings in this dispute.  
In light of the clarification contained in the United States' response, the Panel does not 
consider it necessary to rule on India's request at this time. If India wishes to 
comment further on the points raised in the United States' response, it may do so at 
the first substantive meeting. 
7.22.  In its opening oral statement at the first substantive meeting with the Panel, India 
reiterated its request for a preliminary ruling on this matter. The panel communicated its decision 
in writing to the parties and third parties on 6 February 2015. The Panel's 6 February 2015 
communication is reproduced below, and forms an integral part of this Report:  
In its first written submission of 5 Dece mber 2014, India requested that the Panel 
make a preliminary ruling clarifying the scope of the measures falling within the 
Panel's terms of reference. India took the position that the Panel's terms of reference are limited to the domestic content requir ements in Phase I (Batches 1 and 2) and 
Phase II (Batch 1). India objected to the various references in the United States' first 
written submission to a purported "JNNSM programme", to vague and undefined "JSNNM programme measures", and to the draft Guidelines for Phase II (Batch 2). In India's view, these references represented an attempt by the United States to widen 
the scope of the terms of reference of the Panel to seek findings on the Jawaharlal 
Nehru National Solar Mission (JNNSM) as a whole, or potential or future measures under the JNNSM.  
In its response of 8 January 2015, the United States clarified that at present it only 
challenges those measures that India agrees are covered by the panel request and the Panel's terms of reference, i.e. the domestic content requirements under Phase I 
(Batches 1 and 2) and Phase II (Batch 1). The United States clarified that it was not 
seeking findings on the JNNSM "programme" as a whole, or any other JNNSM programme measures, including the draft Guidelines for Phase II (Batch 2). As to whether any future measure could fall within the Panel's terms of reference, the 
United States argued that the Panel should refrain from making any ruling in the 
abstract, and instead reserve judgement until such time as the issue might come WT/DS456/R 
 
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  squarely before the Panel. The United States indicated that this would only occur if 
India promulgates a new measure, and if the United States then asks the Panel to examine that particular measure.  
On 16 January 2015, the Panel informed the pa rties that in light of the clarification 
contained in the United States' response of 8 January 2015, the Panel did not consider 
it necessary to rule on India's request at that time. The Panel indicated that if India wished to comment further on the points raised in the United States' response of 8 
January 2015, it could do so at the first substantive meeting scheduled for 3-4 
February 2015.  
In its opening oral statement at the firs t substantive meeting, the United States 
confirmed that with respect to Phase I (Batch 1), Phase I (Batch 2), and Phase II 
(Batch 1), the measures at issue are only the specific domestic content requirements 
imposed under each batch, and do not includ e any other element of the JNNSM. In its 
opening oral statement, India reiterated its request for a preliminary ruling on this 
matter, on the grounds that despite the clarifications and assurances in the United 
States' response of 8 January 2015, ambiguities and a lack of clarity persisted regarding the measures the United States is challenging. In response to an oral 
question from the Panel posed at that meeting, the United States again confirmed that 
with respect to Phase I (Batch 1), Phase I (Batch 2), and Phase II (Batch 1), the measures at issue are only the specific do mestic content requirements imposed under 
each batch, and do not include any other element of the JNNSM, "JNNSM Programme 
measures", or any other wider range of measures. In its closing statement at the first 
meeting, India noted with concern that ther e continued to be differences between the 
parties on the scope of the terms of referenc e of this Panel, and reiterated its request 
for a preliminary ruling on the measures at issue.  
The Panel notes that India does not dispute that the domestic content requirements 
imposed under Phase I (Batches 1 and 2) and Phase II (Batch 1) are identified in the 
panel request and fall within the scope of the Panel's terms of reference. The Panel 
further notes that these are at present the only measures in respect of which the United States seeks findings. In this regard, the Panel recalls the United States' clarifications that it is not challenging any wider range of measures with respect to 
Phase I (Batches 1 and 2) and Phase II (Batch 1), nor the JNNSM "programme" as a 
whole, nor the draft Guidelines for Phase II (Batch 2). The Panel does not consider it necessary or appropriate to issue a prospectiv e ruling on the hypothetical question of 
whether one or more measures that are not yet in existence, and in respect of which 
the complaining party has not requested any findings, would be found to fall within the scope of the Panel's terms of reference in the event that they were to come into 
existence and subsequently be challenged by the complaining party.  
In light of the foregoing, the Panel declines India's request that the Panel make a 
ruling on the scope of the measures at issue in this dispute. This is without prejudice to the parties' positions on whether any future measure, if challenged, would fall 
within the scope of the Panel's terms of reference.
110  
7.23.  We note that the United States did not subsequently challenge the aspects of the National 
Solar Mission that India considered to be outside of the Panel's terms of reference. It therefore 
never became necessary for the Panel to make a ruling on whether those aspects would, if 
challenged, be measures covered by  the Panel's terms of reference.111 
                                               
110 Communication from the Panel to the partie s and third parties dated 6 February 2015. 
111 We note that our approach is cons istent with that taken by other pa nels that have declined to make 
preliminary rulings on hypothetical questions about whethe r certain measures would, if  challenged, be found to 
fall within the scope of their te rms of reference. Panel Report, India – Agricultural Products , paras. 7.107-
7.109; Australia – Tobacco Plain Packaging (Indonesia) , Preliminary Ruling by the Panel dated 19 August 2014, 
para. 5.36, circulated to the Dispute Settlement Body on 27 October 2014 as WT/DS467/19; Australia – 
Tobacco Plain Packaging (Dominican Republic) , Preliminary Ruling by the Panel dated 19 August 2014, 
para. 5.37, circulated to the Dispute Settlement Body on 27 October 2014 as WT/DS441/19. WT/DS456/R 
 
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  7.1.4  Single or multiple DCR measure(s) within each Batch 
7.24.  As explained above, the DCR measures in Phase I (Batch 1), Phase I (Batch 2), and 
Phase II (Batch 1-A) are each set forth, reproduced, or otherwise reflected in a series of different documents. This raises the question whether it is necessary, for the purpose of our analysis and 
findings, to treat each of the documents reflecting the applicable DCR measure as a distinct 
measure.
 For the reasons that follow, we conclude that it is not. 
7.25.  First, the United States' panel request states that "[t]he measures at issue  are India's 
requirements  that solar power developers … purchase or use solar cells or solar modules of 
domestic origin in order to enter into and maintain certain power purchase agreements under Phase I or Phase II". The panel request then states that "[t]he domestic content requirements at issue are maintained through the following instruments", followed by a list of instruments relating 
to the three Batches at issue. Thus, the United States' panel request identifies the measures at 
issue as the DCR measures reflected in the various documents, and not those documents as a series of distinct measures per se.
112  
7.26.  Second, throughout the course of the pr oceedings, both parties have articulated their 
respective claims and defences in a manner consistent with the view that the relevant measure for each Batch is the DCR measure reflected in the different documents within each Batch, as opposed 
to the view that the different documents within each Batch constitute a series of distinct measures 
requiring separate analyses and findings. In response to an oral question at the first substantive meeting, both parties confirmed that it would be correct to analyse the documents within each Batch in a holistic manner, and not as a series of separate measures.
113 
7.27.  Third, the different documents within each Batch are interconnected in a way that does not 
w a r r a n t  t r e a t i n g  e a c h  o f  t h e m  a s  a  d i s t i n c t  m e asure. Within each Batch, the applicable DCR 
measure was initially set forth in the Guidelines  document, reproduced in the Request for Selection  
document, and then implemented by means of the PPAs and the "specific plan" that SPDs had to 
submit after entering into the PPA, specifying how they would meet the requirements of the applicable DCR measure.
114 In other words, it is the same DCR measure that, within each Batch, is 
reflected throughout. Given that the documents are interconnected in this manner, we agree with 
the parties that it is correct to analyse the documents within each Batch in a holistic manner, and not as a series of separate measures. 
7.28.  Based on the foregoing, our analysis proceeds on the understanding that for each Batch, the 
measure at issue is the DCR measure reflected or incorporated in the various documents discussed 
above, including the Guidelines  document, the Request for Selection  document, the model PPA, 
the individually executed PPAs, and the "specific pl an" that each SPD had to submit after entering 
into the PPA. We do not treat each of those documents as a distinct measure. 
7.1.5  Separate or collective evaluation of DCR measures under the three Batches 
7.29.  The DCR measures in Phase I (Batch 1), Ph ase I (Batch 2), and Phase II (Batch 1-A) differ 
from one another in terms of their scope and coverage. They were also imposed under PPAs that 
were entered into at different times, involving a range of different SPDs. This raises the question 
whether it is necessary to separately analyse the three DCR measures for the purpose of examining those measures under Article 2.1 of  the TRIMs Agreement and Article III:4 of the 
GATT 1994, their coverage under Article III:8(a) of the GATT 1994, and/or their justification under 
Articles XX(j) and XX(d) of the GATT 1994.  
7.30.  In this case, the parties have not advanced any arguments that are specific to one of the 
DCR measures at issue, nor have they suggested that the differences that exist between the three 
DCR measures are relevant for the purpose of examining the claims, defences, and issues before 
                                               
112 United States' request for the establishment of a panel,  p. 1. (emphasis added) 
113 Although the United States requested "findings with respect to the domestic content requirements in 
individually executed Power Purchase Agreements", its basis for this request was that such PPAs incorporate 
the requirements set forth in the applicable Guidelines  and Request for Selection  documents. See United 
States' response to Pa nel question No. 1(a). 
114 See paragraphs 7.8.  to 7.10.   WT/DS456/R 
 
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  the Panel. Rather, each party has provided a co llective evaluation of the three DCR measures, 
based on the features common to all three DCR measures. 
7.31.  We see no reason to adopt a different approach. Accordingly, the three DCR measures 
imposed under the three Batches are referred to and analysed collectively as "the DCR measures" 
in the analysis that follows.115  
7.1.6  Request for enhanced third-party rights in light of the measures at issue  7.32.  On 29 October 2014, Canada requested enhanced third-party rights based on the nature of 
the measures at issue in these proceedings.
116 Canada argued that WTO Members other than the 
disputing parties have an interest in the application of Article III of the GATT 1994 to domestic content requirements, and that issues relating to "green energy measures" are of systemic 
importance to WTO Members. Canada requested the following rights, for itself and the other third 
parties in this dispute: (a) to receive electronic copies of all of the parties' written submissions, 
oral statements, and answers to questions from th e Panel up to immediately prior to the issuance 
of the interim report; (b) to be present for the en tirety of all substantive meetings of the Panel 
with the parties; (c) to respond to questions fr om the Panel throughout the proceedings; and (d) 
to have the option to file their written submissions before, and make an oral statement during, the second substantive meeting of the Panel, ra ther than the first substantive meeting.  
7.33.  India and the United States opposed Canada's request for enhanced third-party rights.
117 
Among other things, they argued that Canada provided no basis to conclude that this dispute differs from any other dispute; that granting enhanced third-party rights is premised on the agreement of both parties to the dispute; and th at there were several difficulties regarding the 
specific rights requested by Canada in this disput e. After consulting with the parties on Canada's 
request, the Panel informed the parties and third parties that it had decided to decline Canada's request, for reasons to be elaborated in the Report.
118 Our reasons are as follows.  
7.34.  We recall that it is well established that the third-party rights guaranteed in the DSU are 
minimum guarantees, and that a panel has the discretion to grant enhanced third-party rights where the circumstances warrant, provided that any such rights are consistent with the provisions 
of the DSU and the requirements of due process.
119 Panels have done so where there were 
particular circumstances that merited the granting of enhanced third-party rights, which could potentially include third parties enjoying economic benefits that were the subject of, and directly implicated by, the measure at issue
120, the potential impact of DSB rulings and recommendations 
on third parties maintaining similar measures to those challenged121, or a third party in one 
proceeding participating as a party in a parallel proceeding challenging the same measures.122  
7.35.  In our view, Canada did not identify any particular circumstances in this dispute that would 
warrant the granting of enhanced third party rights. We agree with the United States that WTO 
Members always have a collective interest in the interpretation of covered agreements, and that panels' interpretations of WTO agreements "are, by definition, of 'systemic importance' to WTO 
Members".
123 We consider that the existing Working Procedures provide third parties with an 
adequate opportunity to express their views on the issues of systemic importance raised in these 
proceedings. Furthermore, we note  that previous panels have consistently denied requests for 
                                               
115 We are not suggesting that the three DCR measures implemented in the three different Batches are 
interrelated in such a way as to constitute a single measure; to the contrary, we refer to the three DCR 
measures in the plural to reflect that they are three distinct measures. 
116 Letter from Canada dated 29 October 2014. 
117 Letter from the United States dated 6 November 2014; Letter from India dated 6 November 2014. 
118 Letter from the Panel to the parties and third parties dated 14 November 2014. 
119 Appellate Body Reports, US – 1916 Act , para. 150; EC – Hormones , para. 154; and US – FSC 
(Article 21.5 – EC) , para. 243. 
120 Panel Reports, EC – Bananas III (Guatemala and Honduras) , para. 7.8, and EC – Tariff Preferences , 
Annex A, para. 7(a). 
121 Panel Report, EC – Tariff Preferences , Annex A, para. 7(b). 
122 Panel Reports, EC – Bananas III (Guatemala and Honduras) , para. 7.8; Panel Report, EC – Hormones 
(Canada) , para. 8.18. 
123 Letter from the United States dated 6 November 2014, paras. 3-4. WT/DS456/R 
 
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  enhanced third-party rights where the parties were unanimously opposed.124 We therefore 
consider it appropriate to give due regard to the parties' agreement that the Panel should decline Canada's request for enhanced third-party rights.  
7.2  Claims under Article 2.1 of the TRIMS Agreement and Article III:4 of the GATT 1994  
7.2.1  Introduction 
7.36.  Article III of the GATT 1994 is entitled "National Treatment on Internal Taxation and 
Regulation". Paragraph 4 of Article III provides in relevant part: 
The products of the territory of any Member  imported into the territory of any other 
Member shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sa le, purchase, transportation, distribution or 
use.  
7.37.  Article 2 of the TRIMs Agreement, en titled "National Treatment and Quantitative 
Restrictions", provides: 
1. Without prejudice to other rights and obligations under GATT 1994, no Member 
shall apply any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994. 
2. An illustrative list of TRIMs that are inconsistent with the obligation of national 
treatment provided for in paragraph 4 of Article III of GATT 1994 and the obligation of 
general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 is contained in the Annex to this Agreement. 
7.38.  Paragraph 1(a) of the "Illustrative List" in the Annex to the TRIMs Agreement stipulates 
that: 
1. TRIMs that are inconsistent with the obligation of national treatment provided for in 
paragraph 4 of Article III of GATT 1994 include those which are mandatory or 
enforceable under domestic law or under ad ministrative rulings, or compliance with 
which is necessary to obtain an advantage, and which require:  
(a) the purchase or use by an enterprise of products of domestic origin or from 
any domestic source, whether specified in terms of particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its local production;  
7.39.  The United States claims that the DCR measures accord less favourable treatment to foreign 
solar cells and modules than that accorded to like domestic products, resulting in a violation of Article III:4 of the GATT 1994 and of Article 2.1 of the TRIMs Agreement. The United States 
argues that the DCR measures modify the conditions of competition in favour of solar cells and 
modules manufactured in India to the detriment of imported equipment in violation of Article III:4 
of the GATT 1994. The United States further argues that the DCR measures are inconsistent with 
Article 2.1 of the TRIMs Agreement because they are trade-related investment measures that 
make the purchase of domestic products (solar cells and modules) a requirement to obtain an advantage, thus falling under paragraph 1(a) of the Illustrative List in the Annex to the TRIMs Agreement.
125  
7.40.  India requests the Panel to reject the United States' claims under Article III:4 of the 
GATT 1994 and Article 2.1 of the TRIMs Agreement.  In particular, India submits that the DCR 
                                               
124 Panel Reports, Dominican Republic – Safeguard Measures , para. 1.8; Argentina — Import Measures, 
para.1.24; and China – Rare Earths , para. 7.9. 
125 See United States' first written submission, pa ras. 45-73 and 80-93; United States' responses to 
Panel question Nos. 13 and 17-18; United States' second written submission, paras. 7-12; United States' responses and comments on India's responses to Panel question Nos. 39-40. WT/DS456/R 
 
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  measures do not result in treatment less favourable for imported solar cells and modules than for 
solar cells and modules of Indian origin. On this basis, India contends that the DCR measures are 
not inconsistent with Article III:4 of the GATT 1994, and that consequently there is no violation of Article 2.1 of the TRIMs Agreement.
126 
7.41.  Issues of sequencing may become relevant to a logical consideration of claims under 
different agreements.127 We note that, as a general principle, panels are free to structure the order 
of their analysis as they see fit.128 Moreover, we do not consider, nor have the parties argued, that 
the present case is one in which "there exists a mandatory sequence of analysis which, if not 
followed, would amount to an error of law" or "have repercussions for the substance of the analysis itself".
129 In structuring our order of analysis, we find it useful to take account of the 
manner in which the parties have presented their claims and defences.130 In this case, we 
commence with the United States' claims under Article 2.1 of the TRIMs Agreement and 
Article III:4 of the GATT 1994. With respect to thes e claims, an initial question disputed by the 
parties concerns the relationship between prov isions of the GATT 1994 and the TRIMs Agreement, 
and the implications of this relationship for the logical order of analysis of the United States' claims 
under these agreements. We first examine the specif ic legal question disputed by the parties of 
whether measures falling under paragraph 1(a) of the TRIMs Illustrative List are necessarily 
inconsistent with Article III:4 of the GATT 1994 , and thereby with Article 2.1 of the TRIMs 
Agreement, thus obviating the need for separate and additional examination of the legal elements 
of Article III:4 of the GATT 1994. We then turn to whether the DCR measures in fact fall under 
paragraph 1(a) of the TRIMs Illustrative List and,  applying our conclusions in the preceding legal 
analysis, whether they are inconsistent with Article III:4 of the GATT 1994 and Article 2.1 of the 
TRIMs Agreement. Lastly, we address the parties' arguments specifically relating to the distinct 
legal elements under Article III:4 of the GATT 1994.  
7.42.  In addition to arguing that the United States has failed to demonstrate that the DCR 
measures accord imported solar cells and modules treatment less favourable than that accorded to like products of Indian origin, India further requests that the Panel find that the government 
procurement derogation under Article III:8(a) of th e GATT 1994 is applicable to the measures at 
issue. As discussed below, Article III:8(a) of th e GATT 1994 is a derogation that relates to the 
scope of application of Article III:4 of the GATT 1 994 as well as Article 2.1 and paragraph 1(a) of 
the Illustrative List of the TRIMs Agreement. Wh ile it may be possible to commence our analysis 
with an assessment of whether the DCR measures are covered by the derogation in Article III:8(a) 
of the GATT 1994 and therefore fall outside of the scope of the national treatment obligations in 
Article III:4 of the GATT 1994 and Arti cle 2.1 of the TRIMs Agreement
131, such an assessment is 
grounded upon the alleged discrimination at issue and the particular products that are allegedly 
subject to that discrimination.132 Given this interrelationship between these provisions, and 
following the sequence of analysis presented by  the parties in this case, we proceed without 
prejudice to our analysis in section 7.2.6 of  whether the DCR measures are covered by the 
derogation in Article III:8(a) of the GATT 1994,  and thus exempted from the disciplines of 
Article 2.1 of the TRIMs Agreemen t and Article III:4 of the GATT 1994. 
                                               
126 See India's first written submission, paras. 88-94;  India's responses to Panel question Nos. 13-16; 
India's opening statement at the first meeting of the Panel, paras. 21-23; India's second written submission, paras. 4-13; India's responses and comments on the United States' responses to Panel question Nos. 39-40. 
127 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.8 
128 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 126. 
129 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 109. See also Panel 
Reports, EC – Seal Products , para. 7.63, and US – COOL (Article 21.5 – Canada and Mexico) , para. 7.3. 
130 See Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 126. 
131 See Canada's response to Panel ques tion No. 1(a) to the third parties. 
132 The Appellate Body has found that the analysis und er Article III:8(a) of the GATT 1994 requires an 
assessment of whether the product purchased is in a competitive relationship with the foreign product(s) allegedly discriminated agains t. Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , 
para. 5.79. See para. 7.111.  below. WT/DS456/R 
 
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  7.2.2  Whether measures falling under paragrap h 1(a) of the TRIMs Illustrative List are 
necessarily inconsistent with Article III:4 of  the GATT 1994, thus obviating the need for 
separate and additional examination of th e legal elements of Article III:4 of the 
GATT 1994 
7.43.  The United States submits that "the Panel may properly begin its analysis under either the 
GATT 1994 or the TRIMs provision, and in both  cases, will reach the same conclusion".133 However, 
the United States posits that it may be "more efficient" to begin with the TRIMs claim because 
"measures that are inconsistent with Article 2.1 of the TRIMs Agreement are necessarily 
inconsistent with Article III:4 of the GATT 1994", wh ich "would obviate the need for the Panel to 
conduct additional analysis  for purposes of establishing that the DCRs are also inconsistent with 
India's obligations under Article III:4 of the GATT 1994".134  
7.44.  India disputes the view that the Panel should  begin its analysis with Article 2.1 of the TRIMs 
Agreement, asserting that a claim under this provision "cannot be read as a stand-alone claim".135 
With respect to the Illustrative List in the Annex to the TRIMs Agreement of trade-related 
investment measures that are inconsistent with Article III:4 of the GATT 1994, India submits that 
the DCR measures "would qualify under the meaning of paragraph 1(a) of the Illustrative List in 
the Annex to the TRIMs Agreement subject to  the finding that they are held to be inconsistent with 
Article III:4 of the GATT 1994".136 India further argues that "Article 2.1 of the TRIMs Agreement is 
not a more specific provision, in that it does not add to or subtract from GATT obligations, but merely serves to clarify that Article III:4 may cover investment related matters", citing the reasoning of the panel and Appellate Body in Canada – Renewable Energy / Feed-In Tariff Program  
as supportive of this position.
137 With respect to the interrelationship of provisions under the TRIMs 
Agreement, India argues that "the purpose of Articl e 2.2 and the Illustrative List is only to provide 
examples of measures that are subject to the obli gation under Article 2.1. It does not create any 
substantive legal obligations in itself."138 Accordingly, India contends that a violation of Article 2.1 
of the TRIMs Agreement must be established by sati sfying the distinct elements of Article III:4 of 
the GATT 1994, independently from reference to the Illustrative List and provisions of the TRIMs 
Agreement. 
7.45.  The third parties to this dispute also have diverging views as to the relationship between, 
and relative specificity of, the TRIMs Agreement and the GATT 1994. The European Union considers that the TRIMs Illustrative List "gives detailed guidance to Members, as well as to WTO 
panels, by elaborating on the general national tr eatment rule in the specific context of TRIMs", 
which "simplifies decision-making by avoiding open-ended assessments under Article III of the GATT 1994".
139 The European Union submits that, "[i]n that sense, Article 2.1, as informed by 
Article 2.2 and the Illustrative List, is the more specific and detailed provision" that should be 
applied first, and that "the subsequent analysis of Article III of the GATT 1994 will naturally follow 
the findings already made under the TRIMs Agreement".140 Brazil, while declining to comment on 
the general proposition that the TRIMs Agreement contains the more specific provisions, "does not 
concur with this proposition in the context of this dispute" and considers that it would be appropriate in this case to fully examine the claims and defences under the GATT 1994 before 
                                               
133 United States' second written submission, para. 12. While the United States considers that 
"paragraph 1(a) of the Illustrative List of the TRIMs Annex may be viewed as a mo re specific provision than 
Article III:4 of the GATT 1994", it also ob serves that "the focus of the U.S. claim is not principally on the DCRs 
as a trade-related investment measure, which would render the TRIMs Agreement "more specific". United States' response to Panel qu estion No. 13(a), para. 24. 
134 United States' second written submission, para. 12. See also United States' response to Panel 
question No. 13(a). 
135 India's second written submission, para. 8. 
136 India's second written submission, para. 8. (emp hasis added) See also India's response to Panel 
question No. 13(b), p. 17 (stating that the DCR measures qualify under the relevant provisions of the TRIMs Agreement "to the extent th at they are held to be inconsistent  with Article III:4" of the GATT 1994). 
137 India's second written submission, paras. 10-13, and response to Panel question No. 13(a). 
138 India's response to Panel question No. 39, para. 3. 
139 European Union's response to Panel question  No. 1(a) to the third parties, para. 1. 
140 European Union's response to Panel question No. 1( a) to the third parties, para. 4. In the European 
Union's view, "the TRIMs Agreement was designed to be come the centre of gravit y when analysing the trade-
restrictiveness of trade-related investment measures. It was not meant to be an afterthought to the analysis of TRIMs under the GATT 1994." European Union's response to Panel question No. 1(a) to the third parties, 
para. 3. WT/DS456/R 
 
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  turning to the TRIMs Agreement.141 Canada disagrees with the European Union that Article 2.1 of 
the TRIMs Agreement is a more specific provision, and instead considers it "more specific only to the extent that it applies to a particular set of measures, i.e. trade-related investment measures".
142 Japan also disagrees with the European Un ion and believes that the analysis of the 
measures at issue should begin under Article III:4 of the GATT 1994, citing past panels that have 
done so or that have considered TRIMs and GATT 1994 claims together.143 Korea notes that 
"[a]lthough the Appellate Body allowed a discretionary power to a WTO panel in structuring the 
order of analysis, the panel must structure its order of analysis so as to effectively address the 
claims raised by the complainant", considering in particular the manner in which a claim is presented by a complainant.
144  
7.46.  We note that in prior disputes with concurrent TRIMs and GATT 1994 national treatment 
claims, some panels have assessed which agreement "deals specifically, and in detail, with" the 
measures at issue to determine the appropriate sequence of analysis.145 Past panels have reached 
differing conclusions in response to this question.146 We note at the outset that in this case, the 
issue before the Panel is not whether the TRIMs Agreement is more "specific" or more "detailed" 
than the GATT 1994, nor is the question before this Panel the relationship between these two 
agreements more generally. Rather, it is whether measures falling under paragraph 1(a) of the 
TRIMs Illustrative List are necessarily inconsistent with Article III:4 of the GATT 1994, thus 
obviating the need for separate and additional examination of the legal elements of Article III:4 of the GATT 1994. 
7.47.   In our view, this question is resolved by the unambiguous wording of Article 2.2 and the 
Illustrative List of the TRIMs Agreement. The TRIMs Agreement applies to a limited subset of 
measures, namely "investment measures related to trade in goods only (referred to in this Agreement as 'TRIMs')".
147 Article 2.1 states that, "[w]ithout prejudice to other rights and 
obligations under GATT 1994", Members shall not "apply any TRIM that is inconsistent with the 
provisions of Article III" of the GATT 1994. Articl e 2.2 then states that "[a]n illustrative list of 
TRIMs that are inconsistent with  the obligation of national treatment provided for in paragraph 4 of 
Article III of the GATT 1994 … is contained in the Annex to this Agreement".148 The chapeau of 
paragraph 1 of the Illustrative List repeats, using identical language as that contained in Article 2.2, that "TRIMs that are inconsistent  with the obligation of national treatment provided for in 
paragraph 4 of Article III of the GATT 1994 incl ude those" of the type set forth therein.
149 Thus, as 
noted by the Appellate Body, "[b]y its terms, a measure that falls within the coverage of 
                                               
141 Brazil's response to Panel question No. 1(a) to the third parties. 
142 Canada's response to Panel question No. 1(a) to the third parties, para. 3. Canada submits that the 
"correct analytical sequence  in this case starts with examining whether the measure falls within the scope of 
Article III:8(a)" of the GATT 1994, and if it does not, the Panel should then asse ss whether the measure is 
inconsistent with Article III:4 of the GATT 1994 followed by Article 2.1 of the TRIMs Agreement. Canada's response to Panel question No. 1(a) to the third partie s, para. 1. Canada additionally cautions against any 
implication that the greater specificity of the TRIMs Agreement should mean that a measure could violate the TRIMs Agreement despite falling with in the scope of the derogation in  Article III:8(a) of the GATT 1994. 
Canada's response to Panel question No . 1(a) to the third parties, para. 5. 
143 Japan's response to Panel question No . 1(a) to the third parties, para. 1. 
144 Korea's third-party statement, pa ra. 6. Korea further states that "[i]t seems more logical that one 
may first analyze the consistency of Article III or Articl e XI, and then move forward [to the] next question of 
whether a specific measure violated Article 2.1". Korea's third-party statement, para. 7. 
145 See Appellate Body Reports, EC – Bananas III , para. 204; Canada – Renewable Energy / Feed-In 
Tariff Program , para. 5.6. 
146 See, e.g. Panel Report, Indonesia – Autos , para. 14.63 (deeming the TRIMs Agreement to be "more 
specific" than the GATT 1994 as a basis for exam ining the TRIMs claims first); Panel Reports, Canada – Autos , 
para. 10.63 and India – Autos , para. 7.157 (expressing doubt as to whether the TRIMs Agreement can in fact 
be characterized as more specific than the relevant GATT 1994 provisions); and Panel Reports, Canada – 
Renewable Energy / Feed-In Tariff Program , para. 7.70 (noting that "the measures at issue are trade-related 
investment measures affecting impo rts of renewable energy generation equipment and components", which 
"suggests that, compared with the SCM Agreement an d Article III:4 of the GATT 1994, it is the TRIMs 
Agreement that deals most directly, specifically and in detail" with the challenged aspects of the measures at issue in that case). 
147 Article 1 of the TRIMs Agreement provides: "This Agreement applies to inve stment measures related 
to trade in goods only (referred to  in this Agreement as 'TRIMs')." 
148 Emphasis added. 
149 Emphasis added. WT/DS456/R 
 
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  paragraph 1(a) of the Illustrative List is 'inconsistent with the obligation of national treatment 
provided for in paragraph 4 of Article III of GATT 1994'."150  
7.48.  Apart from textual considerations, this view is further supported by the Appellate Body's 
assessment in Canada – Renewable Energy / Feed-in Tariff Program  that the panel in that dispute 
did not err in declining to rule on a "stand-alone Article III:4 claim" after having reached its finding 
under Article 2.1 and the Illustrative List of the TRIMs Agreement. The Appellate Body considered that "it is not obvious what a stand-alone findin g of violation of Articl e III:4 of the GATT 1994 
would add to a finding of violation of Article III:4 that is consequential to an assessment under the 
Illustrative List of the TRIMs Agreement."
151 Further explaining the interplay between the TRIMs 
Illustrative List and Article III:4 of the GATT 1994, the Appellate Body stated that "[i]n the present case, fulfilment of the elements in paragraph 1(a) of  the Illustrative List of TRIMs results in a 
finding of inconsistency with Article III:4 of the GATT 1994 ."
152  
7.49.  The panel in Canada – Renewable Energy / Feed-In Tariff Program  specifically noted that "it 
is apparent from the terms of Article 2.1 of the TRIMs Agreement that, in undertaking this 
evaluation [of claims made under the TRIMs Agreemen t], we will also necessarily have to come to 
a view about the merits of the complainants' allegations concerning the consistency of the challenged measures with Article III:4 of the GATT 1994".
153 We do not understand this statement, 
as India seems to contend154, to support the view that inconsistency with Article 2.1 of the TRIMs 
Agreement can be established only by a separate  analysis under Article III:4 of the GATT 1994. To 
the contrary, the panel in Canada – Renewable Energy / Feed-In Tariff Program , having found that 
the challenged measures were "trade-related in vestment measures" falling within the scope of 
paragraph 1(a) of the Illustrative List, concluded on that basis alone that there was a violation of 
Article III:4 of the GATT 1994 and Article 2.1 of the TRIMs Agreement. The panel did not conduct 
any additional or separate examination of whether there was "less favourable treatment" within 
the meaning of Article III:4 of the GATT 1994.155 Thus, its statement reproduced above simply 
reflects the understanding that Article 2.2 and the Illustrative List identify certain "TRIMs that are inconsistent with the obligation of national treatment" provided for in Article III:4 of the 
GATT 1994 and, consequently, Article 2.1 of the TRIMs Agreement. As explained by the Appellate 
Body, "Article 2.2 provides further specification as to the type of measures that are inconsistent with Article 2.1. The operative part of Article 2.2 is the reference to the Illustrative List, which provides examples of measures that are incons istent with the national treatment obligation".
156 
7.50.  India further relies on the Appellate Body's upholding of the panel finding in Canada – 
Renewable Energy / Feed-In Tariff Program  that "Paragraph 1(a) of the Illustrative List in the 
Annex to the TRIMs Agreement d[id] not obviate the need for [the Panel] to undertake an analysis 
of whether the challenged measures are outside of  the scope of application of Article III:4 of the 
GATT 1994 by virtue of the operation of Article III:8(a) of the GATT 1994."157 However, we note 
that this finding by its own terms concerns the "scope of application" of Article III:4, and was 
made in the context of addressing whether the government procurement exemption in 
Article III:8(a) of the GATT 1994 applies to measures covered by paragraph 1 of the TRIMs Illustrative List – in other words, "whether the Article III:8(a) defence to an Article III:4 claim would also provide a defense to claims under Article 2.1 of the TRIMs Agreement".
158 We follow 
the Appellate Body's finding that measures falling outside of the scope of application of 
                                               
150 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.24. 
151 Appellate Body Reports, Canada – Renewable Energy / Feed-in Tariff Program , para. 5.94. 
152 Appellate Body Reports, Canada – Renewable Energy / Feed-in Tariff Program , para. 5.103. 
(emphasis added) 
153 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , 7.70. 
154 See, e.g. India's response to Panel question No . 13(a); India's second written submission, para. 11. 
155 After finding that the measures fe ll within the scope of paragraph 1( a) of the Illustrative List, the 
panel's analysis of Article III:4 of the GATT 1994 consisted of a one-senten ce consequential finding: "We are 
therefore satisfied that the challenged measures are TR IMs falling with the scope of Paragraph 1(a) of the 
Illustrative List, and that in the light of Article 2.2 and the chap eau to Paragraph 1(a) of the Illustrative List, 
they are inconsistent with Article III:4 of the GATT 1994 , and thereby also with Article 2.1 of the TRIMs 
Agreement." Panel Report, Canada – Renewable Energy / Feed-in Tariff Program , para. 7.166. (emphasis 
added) 
156 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , 5.26. 
157 Appellate Body Reports, Canada – Renewable Energy / Feed-in Tariff Program , para. 5.33. See 
India's response to Panel question No. 13(a) and India's second written submission, para. 10. 
158 United States' opening statement at the second meeting of the Panel, para. 10. WT/DS456/R 
 
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  Article III:4 by virtue of Article III:8(a) of the GATT 1994 also fall outside of the scope of the 
obligation in Articles 2.1 and 2.2 of the TRIMs Agr eement and the TRIMs Illustrative List. This does 
not answer or for that matter relate to the specific question contested by the parties, which, as noted above, is whether measures falling under paragraph 1(a) of the TRIMs Illustrative List are 
necessarily inconsistent with Article III:4 of the GATT 1994, thus obviating the need for separate 
and additional examination of the legal el ements of Article III:4 of the GATT 1994.  
7.51.  In support of its view, India additionally cites
159 the Appellate Body's statement in Canada – 
Renewable Energy / Feed-In Tariff Program  that "Article 2.2 and the Illustrative List must be 
understood as clarifying to which TRIMs the general obligation in Article 2.1 applies"160 as well as 
the panel statement that "Article 2.2 of the TRIM s Agreement does not impose any obligation on 
Members, but rather informs the interpretation  of the prohibition set out in Article 2.1".161 In 
response to Panel questioning, India clarified its argument that "the purpose of Article 2.2 and the 
Illustrative List is only to provide examples of  measures that are subject to the obligation under 
Article 2.1."162 According to this view, falling under paragraph 1(a) of the Illustrative List would 
only be an initial trigger for the obligations of Article 2.1 of the TRIMs Agreement, with respect to 
which a further assessment under Article III:4 of the GATT 1994 would be required.  
7.52.  We are mindful that "the task of the treaty  interpreter is to ascertain and give effect to a 
legally operative meaning for the terms of the treaty. The applicable fundamental principle of effet 
utile is that a treaty interpreter is not free to adopt a meaning that would reduce parts of a treaty 
to redundancy or inutility."163 In this connection, we question what purpose Article 2.2 and the 
Illustrative List of the TRIMs Agreement would serve if a finding that a measure falls within the 
terms of the Illustrative List of TRIMs "that are inconsistent with paragraph 4 of Article III" were 
insufficient to establish that such measure is in consistent with Article III:4 of the GATT 1994. It is 
thus difficult to reconcile the plain language of Article 2.2 or the chapeau of paragraph 1 of the 
TRIMs Illustrative List with the suggestion that these provisions simply clarify the scope of 
application  of Article 2.1.164  
7.53.  Indeed, the particular panel statement cited by India, read in its entirety, clarifies that 
Article 2.2 "informs the interpretation of the pr ohibition set out in Article 2.1. In particular, 
Article 2.2 explains that the TRIMs described in the Illustrative List of the Annex to the TRIMs Agreement are to be considered inconsistent with Members' specific obligations under 
Articles III:4 and XI:1 of the GATT 1994 ."
165 The particular Appellate Body statement cited by 
India is one of agreement with the panel's clarification, and is accompanied by a footnote 
reproducing that statement in full. In setting out a harmonious interpretation of provisions of the TRIMs Agreement and the GATT 1994
166, the Appellate Body gave effect to the terms of the TRIMs 
Illustrative List by stating that, "[i]n any event, the broader subset of TRIMs that fall within the 
Illustrative List and do not qualify for derogation under Article III:8(a) of the GATT 1994 remains 
inconsistent with the national treatment obligation  in Article III:4 of the GATT 1994 and Article 2.1 
                                               
159 See India's second written submission, para. 12; In dia's opening statement at the second meeting of 
the Panel, para. 3; and India's response  to Panel question No. 39, para. 2. 
160 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.26. 
161 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.119 (cited in Appellate 
Body Reports, Canada – Renewable Energy / Feed-In Tariff Program, fn 449). 
162 India's response to Panel question No. 39, para. 3. 
163 Appellate Body Report, Canada – Dairy , para. 133. The Appellate Body has also stated that "a treaty 
interpreter must read all applicable provisions  of a treaty in a way that gives meaning to all of them, 
harmoniously. And, an appropriate re ading of this 'inseparable package of rights and disciplines' must, 
accordingly, be one that gives meaning to all the relevant provisions of these two equally binding agreements." 
Appellate Body Report, Argentina – Footwear (EC) , para. 81. (emphasis original) 
164 Insofar as India's understanding is that Ar ticle 2.2 and the Illustrative List provide non-exhaustive 
examples  of what constitute "trade-related in vestment measures" falling within the scope  of Article 2.1, we 
note that these provisions do not state that the TRIMs contained in the Illustrative List are TRIMs subject to  
Article 2.1; they state that the TRIMs contained in the Illustrative List are TRIMs " that are inconsistent with  the 
obligation of national treatment provided for in paragr aph 4 of Article III of the GATT 1994". Insofar as India's 
understanding is that it clarifies the scope of application of Article 2.1 in the sense of providing an exhaustive  
list of examples of the types of TRIMs subject to the obligation in Article 2.1, then the same point would apply, and such an interpretation would also transform the "i llustrative" list  into an exhaustive, closed list. 
165 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , fn 449 (citing Panel 
Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.119). (emphasis added) 
166 See Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para.  5.26. WT/DS456/R 
 
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  of the TRIMs Agreement".167 Thus, the Appellate Body did not consider fulfilment of the 
requirements of the TRIMs Illustrative List merely to be an initial threshold regarding the applicability  of Article 2.1, but rather  a decisive determinant of consistency  with that provision 
based on the national treatment obligation of Article III:4 of the GATT 1994.  
7.54.  We therefore find that TRIMs falling under paragraph 1(a) of the TRIMs Illustrative List are 
necessarily inconsistent with Article III:4 of the GATT 1994, thus obviating the need for separate and additional examination of the legal elements of Article III:4 of the GATT 1994. We consider 
that this approach gives meaning and effect to the explicit terms of the TRIMs Agreement and the 
definitional operation of the Illustrative List with respect to "TRIMs that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994".
168  
7.2.3  Whether the DCR measures fall under paragraph 1(a) of the TRIMs Illustrative 
List  
7.55.  The United States argues that the DCR measures are "mandatory", and also that compliance 
is necessary to obtain certain "advantages".169 In this regard, the United States argues that the 
DCR measures "make the purchase of domestic pr oducts (solar cells and modules) a requirement 
to obtain an advantage (opportunities to bid for and enter into contracts to supply electricity under the [National Solar Mission]), thus falling squarely under paragraph 1(a) of the Annex to the 
TRIMs Agreement".
170 
7.56.  India submits that the "domestic content requirements in this dispute would qualify under 
the meaning of paragraph 1(a) of the Illustrative List in the Annex to the TRIMs Agreement to the extent that they are held to be incons istent with Article III:4" of the GATT 1994.
171 This includes 
the DCR measures being "trade-related investment measures" within the meaning of the TRIMs 
Agreement.172 This is consistent with India's view regarding the relationship between the TRIMs 
Illustrative List and Article III:4 of the GATT 1994,  and, as detailed below, India has presented its 
rebuttal arguments in connection with the specif ic elements of Article III:4 of the GATT 1994 
rather than in connection with the terms of the TRIMs Illustrative List.  
7.57.  In the absence of specific counterargument s by India, we proceed to examine the evidence 
and arguments adduced by the United States to meet its burden of establishing a prima facie  case 
under paragraph 1(a) of the TRIMs Illustrative List. We recall that "a prima facie  case is one which, 
in the absence of effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party presenting the prima facie  case".
173 Based on the 
requirements of the TRIMs Illustrative List, we  examine the United States' claim based on: (a) 
whether the DCR measures are "TRIMs" within the meaning of Article 1 of the TRIMs Agreement; (b) whether the DCR measures "require the purcha se or use of products by an enterprise of 
products of domestic origin" within the meaning of paragraph 1(a) of the Illustrative List; and (c) 
whether the DCR measures are TRIMs that "are mandatory or enforceable under domestic law or under administrative rulings, or compliance with whic h is necessary to obtain an advantage" within 
the meaning of the chapeau of the Illustrative List.
174 
                                               
167 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para.  5.28. 
(emphasis added) 
168 This finding is without prejudice to our analysis of  whether the derogation in Article III:8(a) of the 
GATT 1994 is applicable to the DCR measures. See section 7.2.6 below. 
169 United States' first written submission, paras. 61- 64; United States' opening statement at the first 
meeting of the Panel, paras. 9-13. 
170 United States' second written submission, para. 7. 
171 India's response to Panel question No. 13(b). 
172 India's response to Panel question No. 14. 
173 Appellate Body Report, EC – Hormones , para. 104. 
174 See Panel Reports,  Canada – Renewable Energy / Feed-In Tariff Program , para. 7.157. We note that 
the chapeau of paragraph 1 of the Illustrative List appl ies to TRIMs that are "mandatory or enforceable under 
domestic law or under administrative rulings, or compliance with which is necess ary to obtain an advantage". 
(emphasis added) Like the panel in Canada – Renewable Energy / Feed-In Tariff Program , we take cognizance 
of the disjunctive nature of the provision and consid er that it would be sufficient for the purposes of 
paragraph 1(a) of the TRIMs Illustrative List for a comp lainant to establish that compliance with a TRIM "is 
necessary to obtain an advant age". See also Panel Report, Indonesia – Autos , paras. 14.88 and 14.91. WT/DS456/R 
 
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  7.2.3.1  Whether the DCR measures are "TRIMs" 
7.58.  The United States submits that the measures in question are "investment measures" 
"because their objective is to encourage the production of solar cells and modules in India".175 The 
United States refers to the approach of the panel in Canada – Renewable Energy / Feed-In Tariff 
Program and various instruments reflecting the aim of the National Solar Mission to incentivize the 
production of solar power generation in India.176 As cited by the United States, the panel in 
Canada – Renewable Energy / Feed-In Tariff Program  c o n s i d e r e d  t h a t  " o n e  o f  t h e  a i m s  o f  t h e  
[measure] is to encourage investment in the local production of equipment associated with 
renewable energy generation".177 The panel further noted that the "objectives" of the challenged 
measure included "enabling 'new green industries through new investment and job creation' and the provision of 'incentives for investment in renewable energy technologies'".
178 As to whether the 
DCR measures are "related to trade in goods", the United States argues that the DCR measures 
are trade-related "because those measures impose domestic content requirements related to the purchase, sale, or use of goods".
179 
7.59.  Article 1 of the TRIMs Agreement provides  that "[t]his Agreement applies to investment 
measures related to trade in goods only (referred to in this Agreement as 'TRIMs')." Although its coverage is thus restricted to a specific type of measure, the TRIMs Agreement does not define 
these terms.
180 In addressing the threshold question of whether the DCR measures are of the kind 
covered by the TRIMs Agreement, we follow past panels181 as well as the United States' 
presentation of its arguments to consider, in turn, whether the DCR measures are "investment measures" and "related to trade in goods".  
7.60.  We note that the United States' arguments are consistent with the approach of the panel in 
Indonesia – Autos , which assessed the question of "investment measures" based upon evidence 
that the measure pursued the promotion and develo pment of specific industries with explicit 
reference to investment-related implications.
182 The panel observed that the measures in that case 
"have investment objectives and investment features and … refer to investment programmes", and further that they "are aimed at encouraging the development of a local manufacturing capability" 
for the goods and sectors in question. The panel deemed that "[i]nherent to this objective is that 
these measures necessarily have a significant impact on investment in these sectors".
183 
7.61.  In the present case, the United States contends that the aim of the National Solar Mission is 
to incentivize the production of solar power generation equipment in India, and that this aim is 
explicitly reflected in relevant documents.184 For instance, the United States observes that the 
Guidelines  for each of the contested Batches cite one of their objectives as being "[t]o promote 
manufacturing in the solar sector, in India".185 The United States additionally cites the Phase I 
                                               
175 United States' first written submission, para. 85. 
176 United States' first written submission, paras. 85-88. 
177 Panel Reports,  Canada – Renewable Energy / Feed-In Tariff Program , para. 7.109. 
178 Panel Reports,  Canada – Renewable Energy / Feed-In Tariff Program , para. 7.109. (footnote omitted) 
179 United States' first written submission, paras. 89-90. 
180 Panel Reports,  Canada – Renewable Energy / Feed-In Tariff Program , para. 7.108. 
181 Panel Reports,  Canada – Renewable Energy / Feed-In Tariff Program , paras. 7.109-7.112; 
Indonesia – Autos , para. 14.72. 
182 Panel Report, Indonesia – Autos , para. 14.72. 
183 Panel Report, Indonesia – Autos , para. 14.80. The panel went on to qualify its finding as follows: 
We do not intend to provide an ov erall definition of what constitutes an investment measure.  We 
emphasize that our characterization of the measures as "investment measures" is based on an examination of 
the manner in which the measures at issue in this case relate to investment.  There may be other measures which qualify as investment measures within the meaning of the TRIMs Agreement because they relate to investment in a different manner. 
184 United States' first written submission, para. 86. 
185 United States' first written submissi on, para. 88 (citing Phase I (Batch 1) Guidelines,  (Exhibit 
USA-5), Section 1.2; Phase I (Batch 2) Guidelines,  (Exhibit USA-6), Section 1.2; and Phase II (Batch 1) 
Guidelines , (Exhibit USA-7), Section 1.2). See also Phase I (Batch 1) Guidelines , (Exhibit USA-5), and Phase I 
(Batch 2) Guidelines,  (Exhibit USA-6), Section 2.5D ("One of the important objectives of the National Solar 
Mission is to promote domestic manufacturing"). WT/DS456/R 
 
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  (Batch 1) Request for Selection  document186 in support of its argument, as well as the following 
passage from the Phase II Policy Document : 
A domestic solar manufacturing base to provide solar components is an important part 
of India's aspirations to become a major global solar player. The mission aims to 
establish [the] country as a solar manufacturing hub, to feed both a growing domestic 
industry as well as global markets. The solar mission, while leveraging other 
government policies, looks to provide favorable regulatory and policy conditions to 
develop domestic manufacturing of low-cost solar technologies, with the support of 
significant capital investment and technical innovation .187 
7.62.  In addition to the documents cited by the United States, we find additional support 
regarding the investment-related aims of the DCR measures within the broader policy context 
o u t l i n e d  i n  t h e  J N N S M  M i s s i o n  D o c u m e n t .  T h i s  d o c u m e n t  e x p l a i n s  t h a t  " [ t ] h e  o b j e c t i v e  o f  t h e  
Mission is to create a policy and regulatory environment which provides a predictable incentive structure that enables rapid and large-scale capital investment in solar energy applications and 
encourages technical innovation and lowering of costs."
188 The JNNSM Mission Document goes on 
to explicitly discuss the bundling mechanism employed in Phase I in terms of the relevant entities and transaction structure, adding that "[t]he requirement of phased indigenization  would be 
specified while seeking development of solar power projects under this scheme".
189 We take note 
of India's explanation that this document "presents a mission and vision statement [that] only highlights the need to achieve manufacturing capabilities and makes broad recommendations 
regarding the same", without "mandat[ing] any specific methods or approaches to achieve its aims 
and objectives", such as domestic content requirements.
190 At the same time, India acknowledges 
that the National Solar Mission "seeks to ensure that part of the procurement of solar power is from domestically manufactured cells and modules. The clear government purpose inherent in this 
regard is, as explained in the JNNSM Mission Document itself, the need to incentivize capacities for 
manufacture of cells and modules."
191 In our view, this is further evidence that the DCR measures 
adopted in furtherance of the broader "mission and vision" can be considered "investment 
measures" within the meaning of the TRIMs Agreement. 
7.63.  With respect to whether the DCR measures are "related to trade in goods", we note that the 
United States' argument is closely in line with the view of previous panels that "if [the] measures 
are local content requirements, they would ne cessarily be 'trade-related' because such 
requirements, by definition, always favour the us e of domestic products over imported products, 
and therefore affect trade".192 In the present case, the DCR measures expressly stipulate the 
origin of specified goods that may be used by SPDs for bidding eligibility and participation under 
each of the relevant Batches of the National Solar Mission. Inasmuch as this necessarily pertains to 
the use of goods based on their origin, we are of the view that the DCR measures are "trade-
related" in the sense identified by previous panels.   
7.64.  Based on the foregoing, we find that the DCR measures constitute "TRIMs" within the 
meaning of Article 1 of the TRIMs Agreement.  
                                               
186 United States' first written submissi on, para. 86 (citing Phase I (Batch 1) Request for Selection  
document, (Exhibit USA-15), Section 1.2). 
187 United States' first written submission, para. 87 (citing Phase II Policy Document, Jawaharlal Nehru 
National Solar Mission , Ministry of New and Renewable Energy (December 2012), (Exhibit USA-3), 
Section 2.6). (emphasis added by United States) 
188 JNNSM Mission Document, (Exhibit IND-1), Section 6, p. 7. 
189 Exhibit IND-1, Section 6, pp. 8-9. (emphasis added) 
190 See India's first written submission, paras. 26 and 39. 
191 India's first written submission, para. 142. 
192 Panel Reports, Indonesia – Autos , para. 14.82; Canada – Renewable Energy / Feed-In Tariff 
Program , para. 7.111. WT/DS456/R 
 
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  7.2.3.2  Whether the DCR measures "require the purchase or use by an enterprise of 
products of domestic origin" 
7.65.  The United States contends that the DCR measures "explicitly 'require the purchase or use 
b y  a n  e n t e r p r i s e  o f  p r o d u c t s  o f  d o m e s t i c  o r i g in' within the meaning of paragraph 1(a) of the 
Illustrative List in the Annex to the TRIMs Agreement".193  
7.66.  The European Union observes that the Guidelines  for the relevant Batches "stipulate, at 
least in respect of a part of the generation capacity aimed at by the respective Batch, that 
participating SPDs are required to use solar cells and modules manufactured in India".194  
7.67.  We recall that the DCR measures, as reflected in the Guidelines  and Request for Selection  
documents reviewed above195, mandate that certain SPDs participating in the National Solar 
Mission use solar cells and/or modules manufactured in India. This includes any SPDs that are 
using the particular products to which the DCR measure in question applies, namely those SPDs 
using c-Si modules in Phase I (Batch 1), those SPDs using c-Si cells or modules in Phase I (Batch 2), and all SPDs participating in Phase II (Batch 1-A). Thus, the DCR measures are TRIMs 
that "require" the "use" by "an enterprise" of "pro ducts of domestic origin", and "are specified in 
terms of particular products", namely in terms of  solar cells and modules with the possibility of 
additional specification of the technology used.
196 W e  a c c o r d i n g l y  f i n d  t h a t  t h e  D C R  m e a s u r e s  
"require the purchase or use by an enterprise of products of domestic origin" within the meaning 
of paragraph 1(a) of the TRIMs Illustrative List. 
7.2.3.3  Whether the DCR measures are TRIMs that "are mandatory or enforceable under 
domestic law or under administrative rulings , or compliance with which is necessary to 
obtain an advantage" within the meaning of the chapeau of the TRIMs Illustrative List  
7.68.  The United States argues that the DCR measures are "mandatory", and also that compliance 
is necessary to obtain certain "advantages".197 The United States points out that, when submitting 
a bid pursuant to the Request for  Selection  documents, SPDs must "certify" that they will "specify 
their plan for meeting the requirement for domest ic content" "within 180 da ys of signing of [a] 
PPA" under Phase I and within "210 days of signing of [a] PPA" under Phase II (Batch 1).198 The 
United States observes that, by so certifying, SPDs also acknowledge that failure to provide such 
specification will be penalized by forfeiture of an "earnest money deposit".199 With respect to the 
"advantages" obtained under the DCR measures, th e United States argues that the "advantages" 
available to SPDs for purposes of paragraph 1(a) are the ability to bid for and enter into PPAs with 
NVVN and SECI to develop solar power projects.200 In addition to this "fundamental advantage to 
SPDs conforming to the DCRs", the United States submits that, under these PPAs, NVVN and SECI agree to purchase electricity from SPDs at guaranteed tariff rates for a term of 25 years. 
Additionally, the United States notes that under  Phase II (Batch 1), SPDs are provided with a 
"capital grant" of up to 30 percent of their tota l product costs or 25 million Rupees/MW (whichever 
is lower).
201 
                                               
193 United States' response to Pa nel question No. 13(b), para. 27. 
194 European Union's third-pa rty submission, para. 9. 
195 See paras. 7.6.   to 7.14.  above. 
196 Given that India has raised arguments regarding th e partial coverage of the DCR measures only in 
connection with the meaning of "less favourable trea tment" under Article III:4, we do not analyse those 
aspects here, but consider them in the specific context in which India has raised them. See section 7.2.4 below. 
197 United States' opening statement at the first meeting of the Panel, paras. 9-13. 
198 United States' first written submissi on, para. 63 (citing Phase I (Batch 1) Request for Selection  
document, (Exhibit USA-15), pp. 51-52; and Phase II (Batch 1) Request for Selection  document, (Exhibit 
USA-12), p. 71). 
199 United States' first written submissi on, para. 63. See Phase I (Batch 1) Request for Selection  
document, (Exhibits USA-15), pp. 51-52; and Phase II (Batch 1) Request for Selection  document, (Exhibit 
USA-12, p. 71 ("Failure or delay on our part in achieving the above cond itions shall constitute sufficient 
grounds for encashment of our Performance Bank Guarantee"). 
200 See United States' response to Panel question No. 18, para. 32 (citing Phase I (Batch 1) Guidelines , 
(Exhibit USA-5), p. 7). 
201 See United States' response to Panel question No. 18, para. 32 (citing Phase II (Batch 1) Guidelines , 
(Exhibit USA-7), Section 1.3). WT/DS456/R 
 
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  7.69.  The European Union states that the DCR measures are "requirements with which compliance 
is mandatory in order to have access to an advantage in respect of that portion of the market"202, 
in that they impose "a condition for obtaining the advantage of long-term contractual tariffs rates and other financial benefits".
203 The European Union considers that the DCR measures "grant a 
significant advantage to solar cells and modules manufactured in India to the detriment of like 
imported products".204  
7.70.   In our view, the arguments of the United States are in close accord with the explanations 
provided by India with respect to the operation of the DCR measures. India does not contest that 
the bidding eligibility and potential contractual benefits under the DCR measures qualify as "advantages" within the meaning of paragraph 1(a)  of the TRIMs Illustrative List. For example, 
India explains that "[o]nce SPDs are selected based on the technical and financial criteria of the 
bid process, PPAs are entered into by NVVN in Ph ase I (Batch I and Batch II) and SECI in Phase II 
(Batch I). These criteria, and the advantages resulting from the selection, such as guaranteed 
long-term tariffs in Phase I (Batch I and Batch II), and guaranteed long-term tariffs as well as VGF 
support in Phase II (Batch I), are available for all SPDs " meeting the applicable requirements.
205 
7.71.  Regarding the means of enforcement under the DCR measures, India notes that "[u]nder 
the PPAs in respect of Phase I (Batch I and Batch II) and Phase II (Batch I), NVVN or SECI (as the 
case may be) have the discretion, but no mandatory obligation, to impose sanctions and penalties 
in the event an SPD fails to comply with the re quirements of DCR as provided under the PPAs for 
the respective batches."206 India specifically highlights variou s clauses of the model PPAs for Phase 
I (Batches 1 and 2) and Phase II (Batch 1), setting  out the "Conditions Subsequent" that must be 
fulfilled by the SPD, including various technical requirements provided in the relevant Guidelines  
and, under Phase II (Batch 1), "their plan for meeting the requirement for domestic content".207 
Additional clauses of the model PPAs provide for "Consequences of non-fulfillment of conditions 
subsequent", which entail potential termination of the PPA and entitlement of NVVN or SECI to 
"encash all the Bank Guarantees submitted by the SPD".208 We note that the model PPAs also 
specifically detail the terms and consequences of de fault and/or breach by SPDs of the obligations 
undertaken in the PPA.209 
7.72.  In our view, the parties' explanations and arguments are in accord as to whether 
compliance with the DCR measures is necessary in order to obtain an advantage. We consider that the present case is not unlike that examined by the panel in Canada – Renewable Energy / Feed-In 
Tariff Program , in which contracts with qualifying generators provided for specific performance and 
certification requirements in exchange for long-term guaranteed prices "to ensure economically viable operations".
210 We find these considerations to be persuasive in the present case, and 
conclude that compliance with the DCR measures "i s necessary to obtain an advantage" within the 
meaning of paragraph 1(a) of the TRIMs Illustrative  List. Moreover, we find the various contractual 
obligations and penalties for default by SPDs, in combination with the requirements established 
under the relevant Guidelines  and Request for Selection  documents, to sustain the conclusion that 
the DCR measures are "mandatory or enforceable under domestic law". 
                                               
202 European Union's third-pa rty submission, para. 28. 
203 European Union's third-pa rty submission, para. 27. 
204 European Union's third-pa rty submission, para. 12. 
205 India's first written submission, para. 92. (emphasis added) 
206 India's response to Panel question No. 1(c). 
207 India's response to Panel question No. 1(c). 
208 India's response to Panel question No. 1(c) (citing Phase I (Batch 1) model PPA, (Exhibit USA-16); 
Phase I (Batch 2) model PPA, (USA-18); and Phase II (Batch 1) model PPA, (Exhibit USA-19)). 
209 See, e.g. Article 13 in each of Phase I (Batch 1) model PPA, (Exhibit USA-16); Phase I (Batch 2) 
model PPA, (USA-18); and Phase II (Batch  1) model PPA, (Exhibit USA-19). 
210 Panel Reports,  Canada – Renewable Energy / Feed-In Tariff Program , paras. 7.164-7.165. WT/DS456/R 
 
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  7.2.3.4  Conclusion on paragraph 1(a) of the TRIMs Illustrative List, Article III:4 of the 
GATT 1994, and Article 2.1 of the TRIMs Agreement 
7.73.  Having found that the DCR measures are TRIMs that "require the purchase or use by an 
enterprise of products of domestic origin", and that "are mandatory or enforceable under domestic 
law or under administrative rulings, or compli ance with which is necessary to obtain an 
advantage", we find that the DCR measures fulfil the requirements of paragraph 1(a) of the TRIMs Illustrative List. Accordingly, the DCR measures "are inconsistent with the obligation of national 
treatment provided for in paragraph 4 of Articl e III of GATT 1994" and thereby also inconsistent 
with Article 2.1 of the TRIMs Agreement.  
7.2.4  Parties' arguments relating to the le gal elements of Article III:4 of the GATT 1994  
7.74.  Having found that the DCR measures are in consistent with Article III:4 of the GATT 1994 by 
virtue of paragraph 1(a) of the TRIMs Illustrative List, it is by definition unnecessary for us to 
proceed with another separate and additional ex amination of whether the DCR measures satisfy 
the legal elements of Article III:4 of the GATT 1 994 without reference to the terms of the TRIMs 
Agreement. Such an examination could only serve to establish a separate and additional basis for 
arriving at the same conclusion that we have already reached, which is that the DCR measures are inconsistent with Article III:4 of the GATT 1994.  
7.75.  In particular, previous panels have observed that the TRIMs Agreement, including its 
Illustrative List, "interprets and clarifies" Article III:4 of the GATT 1994.
211 By its nature, the TRIMs 
Illustrative List has a narrower scope of application and sets out different specific requirements than the underlying obligation in Article III:4 of the GATT 1994.
212 For measures falling within its 
scope, applying the terms of the TRIMs Illustrative List means that the clarifications of the TRIMs 
Illustrative List lead to a consequential finding of inconsistency with the broader underlying obligation in Article III:4 of the GATT 1994. We no te that the United States argues that any 
measure satisfying the elements of paragraph 1(a) of the TRIMs Illustrative List "will also satisfy 
all of the elements of a national treatmen t breach under Article III:4 of the GATT 1994".
213 The 
particular facts of this case do not require us to determine whether this is correct as a general 
matter, nor do they present a situation of confli cting provisions. Nevertheless, we note that the 
General Interpretative Note to Annex 1A of the WTO Agreement provides that, in the event of a 
conflict between a provision of the GATT 1994 an d a provision of another agreement in Annex 1A, 
which includes the TRIMs Agreement, the provision of the other agreement shall prevail to the 
extent of the conflict. Thus, even in the event of  any hypothetical conflict, the provisions of the 
TRIMs Agreement would prevail. 
7.76.  Although we need not conduct any furthe r assessment to reach a finding on the United 
States' claims, it is well established that panels have the discretion to address arguments and 
make additional findings beyond those strictly necessary to resolve a particular claim or defence.
214 These could include, for example, alternative factual findings that could serve to assist 
                                               
211 See, e.g. Panel Report, EC – Bananas III (Guatemala and Honduras) , para. 7.185. 
212 The Appellate Body has note d of the TRIMs Illustrative List, as well  as the Illustrative List of Export 
Subsidies in the SCM Agreement, that "the elements that must be demonstrated under the relevant paragraphs of the Illustrative Lists are not necessarily the same as those that must be demonstrated pursuant 
to the underlying obligation", and that "the underlying obligation captures a broader set of measures than the 
examples in the Illustrative Lists". Appellate Body Reports, Canada – Renewable En ergy/Feed-in Tariff 
Program , para. 5.103. 
213 United States' response to  Panel question No. 40, para. 1. (emphasis original) 
214 The Appellate Body has confirmed that "[j]ust as a panel has the discretion to address only those 
claims which must be addressed in order to  dispose of the matter at issue in a dispute, so too does a panel 
have the discretion to address only those arguments it deems necessary to resolve a particular claim". 
Appellate Body Report, EC – Poultry , para. 135. (emphasis original) The logical corollary of this proposition is 
that a panel has the discretion based on the circumstances of each case to address certain claims and arguments even where it is not strictly necessary to do so to resolv e the matter at issue. We observe that 
Article 11 of the DSU provides that a panel should make an objective assessment of the matter before it, "and 
make such other findings as will assist the DSB in making the recommendations or in giving the rulings 
provided for in the covered agreements". While Articl e 11 does not specify what "such other findings" might 
include, the Appellate Body has confirmed that panels  have the discretion to ma ke alternative findings, 
including alternative factual findings. Appellate Body Reports, US – Softwood Lumber IV , para. 118; Canada – 
Wheat Exports and Grain Imports , para. 126; China – Auto Parts , para. 208; US – Carbon Steel (India) , 
 WT/DS456/R 
 
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  the Appellate Body in completing the legal analysis should it disagree with legal interpretations 
developed by the panel.215 A panel may be guided by a range of different considerations when 
deciding whether to address arguments beyond those strictly necessary to resolve the matter216, 
and the manner in which a panel may do so, including the scope and nature of any such other 
alternative findings, may also vary depending on the issues before the panel.217 
7.77.  As a general matter we agree with the Appellate Body that "it is not obvious what a stand-
alone finding of violation of Article III:4 of the GATT 1994 would add to a finding of violation of 
Article III:4 that is consequential to an assessment under the Illustrative List of the TRIMs 
Agreement".218 We further consider that proceeding with such an examination, if done without a 
clear justification, could call into question the me aning and legal effect of the terms of Article 2.2 
and the Illustrative List of TRIMs that are inco nsistent with Article III:4 of the GATT 1994. We 
therefore do not consider that we are required to proceed with another separate and additional 
examination of whether the DCR measures satisfy the legal elements of Article III:4 of the GATT 
1994 without reference to the terms of the TRIMs Agreement.  
7.78.  However, there are competing considerations in this case arising from the particular 
circumstances and manner in which the disputing parties have presented their argumentation on the claims under Article 2.1 of the TRIMs Agreem ent and Article III:4 of the GATT 1994. In this 
case, the respondent contended that inconsistency with Article III:4 of the GATT 1994 cannot be 
established solely through a demonstration that a measure falls within paragraph 1(a) of the TRIMs Illustrative List. This was the subject of  extensive argumentation between the parties. 
Consistent with its understanding of the relati onship between Article III:4 of the GATT 1994 and 
the TRIMs Illustrative List, the respondent in this case did not specifically contest that the DCR 
measures fall within paragraph 1(a) of the Illustrative List of TRIMs; it instead advanced its rebuttal arguments on the substance of the complainant's national treatment claims in terms of 
whether the DCR measures satisfy the legal elemen ts of Article III:4 of the GATT 1994, and in 
particular the element of "less favourable treatment". Furthermore, it is possible that the manner in which the respondent has presented its arguments on this issue was influenced to some extent 
by the manner in which the complainant presented its arguments in its first written submission
219, 
and by the respondent's understanding of the le gal relationship between paragraph 1(a) of the 
Illustrative List of TRIMs and Article III:4 of the GATT 1994. 
7.79.   Having weighed the considerations and particular circumstances set forth above, the Panel 
has decided to conduct a further assessment of the parties' additional arguments concerning the 
same claim under Article III:4 of the GATT 1994 upon which we have already reached a conclusion, and pursuant to Article 11 of the DSU to "make such other findings as will assist the 
DSB in making the recommendations or in giving the rulings provided for in the covered 
agreements". As stated, our further assessment is based on the particular circumstances above, and should not be understood as calling into question our earlier conclusion regarding the meaning 
and legal effect of the terms of Article 2.2 and the Illustrative List of TRIMs that are inconsistent 
with Article III:4 of the GATT 1994. 
                                                                                                                                               
para. 4.274. See, e.g. Panel Reports, India – Patents (US) , paras. 6.11-6.12 and 7.44-7.50; Canada – Dairy , 
para. 7.119; EC – Bed Linen (Article 21.5 – India) , paras. 6.234-6.246; US – Corrosion-Resis tant Steel Sunset 
Review , paras. 7.172-7.184; China – Auto Parts , fn 641 to para. 7.371; EC and certain member States – Large 
Civil Aircraft , para. 7.224; China – Raw Materials , paras. 7.229-7.230; China – Rare Earths , para. 7.140; and 
US – COOL (Article 21.5 – Canada and Mexico) , paras. 7.672. 
215 See, e.g. Appellate Body Reports, US – Softwood Lumber IV , para. 118; US – Tuna II (Mexico) , 
para. 405. 
216 See, e.g. Panel Reports, Canada – Dairy , para. 7.119, and China – Auto Parts , fn 641 to para. 7.371. 
217 See, e.g. Panel Reports, US – COOL (Article 21.5 – Canada and Mexico) , paras. 7.672. 
218 Appellate Body Reports, Canada – Renewable Energy/Feed-in Tariff Program , para. 5.94. 
219 See India's second written submission, para . 5 (emphasis by India,  footnotes omitted): 
India respectfully submits that the United States has not made any standalone claim under TRIMs 
Article 2.1, but has linked its claims under TRIMs Articl e 2.1 to its request for the Panel's findings under GATT 
Article III:4. The United States has argued that "the  requirements under the JNNSM Programme measures are 
also inconsistent with Article 2.1 of the TRIMs Agreement because  they are trade-related investment measures 
("TRIMs") that are inconsistent with the provisions of Article III of the GA TT 1994". In other words, the United 
States has itself linked the request for the Panel's finding on TRIMs Article 2.1 contingent on  a finding of 
violation under GATT Article III:4. WT/DS456/R 
 
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  7.80.  As cited by the parties220, for a measure to be found inconsistent with the national 
treatment obligation of Article III:4 of the GATT 1994, the following elements must be 
demonstrated:  
(a)  that the imported and domestic products in question are "like products";  
(b) that the measure at issue is a "law, regulation, or requirement affecting their 
internal sale, offering for sale, purchase, transportation, distribution, or use"; and 
(c) that the imported products are accorded "less favourable" treatment than that 
accorded to like domestic products.
221 
7.2.4.1  Like products 7.81.  With respect to "like products", the United States asserts that, "[a]part from country of 
origin", the measures in question "make no further distinction between imported and domestic 
solar cells and modules".
222 The United States cites prior disputes in which this served as a basis to 
conclude that imported and domestic products are like223, as well as the fact that SPDs under the 
National Solar Mission have made use of solar modules manufactured in the United States.224 
7.82.  India "agrees with the United States that the solar cells and modules manufactured 
domestically in India and those imported from th e United States are 'like products' within the 
meaning of Article III:4" of the GATT 1994.225  
7.83.  We note that, as pointed out by the United  States, previous panels examining claims under 
Article III:4 of the GATT 1994 have repeatedly found that products at issue were like where the sole distinguishing criterion was origin.
226 In the present case, the DCR measures impose 
requirements on the use of certain types of so lar cells and modules exclusively based on the 
criterion of their origin. For example, and as observed by the United States227, the Phase I 
(Batch 1) Guidelines  state that "it will be mandatory for Projects based on crystalline silicon 
technology to use the modules manufactured in India ".228 Similarly, the Phase I (Batch 2) 
Guidelines  state "it will be mandatory for all the Projects to use cells and modules manufactured in 
India", but also noted that "modules made from thin  film technologies or concentrator PV cells may 
be sourced from any country ".229 Finally, the Phase II Guidelines  state that for Part A of Batch 1 
"the solar cells and modules used in the power plant must both be made in India ".230  
7.84.  Based on the foregoing, and guided by the reasoning of past panels, we consider that the 
DCR measures apply to "like products" within the meaning of Article III:4 of the GATT 1994. 
                                               
220 India's first written submission, para. 85; Unit ed States' first written submission, para. 47. 
221 Appellate Body Report, Korea – Various Measures on Beef , para. 133. 
222 United States' first written submission, para. 49. 
223 United States' first written submission, paras. 50-54. 
224 United States' first written submission, para. 55. 
225 India's first written submission, para. 86. 
226 See Panel Reports, India – Autos , para. 7.174 ("Origin being the sole criterion distinguishing the 
products, it is correct to treat such products as like products within the meaning of Article III:4."); Canada – 
Autos , para. 10.74 ("it has not been contested that th e distinction made betwee n domestic products and 
imported products in the definition of Canadian value added is based solely on origin and that, consequently, 
there are imported products which must be considered to  be like the domestic prod ucts the costs of which are 
included in the definition of Canadian value added"); Turkey – Rice , para. 7.214 ("where a difference in 
treatment between domestic and imported  products is based exclus ively on the products' origin, it is correct to 
treat products as "alike" within the meaning of Article III:4"); and Argentina – Import Measures , para. 6.274 
("when origin is the only factor distinguishing betwee n imported and domestic products, there is no need to 
conduct a likeness analysis on the basis of the traditiona l likeness criteria established in the GATT panel report 
on Border Tax Adjustments "). 
227 See United States' first writte n submission, para. 54 and fn 55. 
228 Phase I (Batch 1) Guidelines , (Exhibit USA-5), Section 2.5(D). (emphasis added) 
229 Phase I (Batch 2) Guidelines , (Exhibit USA-6), Section 2.5(D). (emphasis added) 
230 Phase II (Batch 1) Guidelines , (Exhibit USA-7), Section 2.6(E). (emphasis added) WT/DS456/R 
 
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  7.2.4.2  Laws, regulations, or requirements  affecting internal sale, purchase, or use 
7.85.  The United States submits that the DCR measures are "'requirements' that 'affect' the 
'internal' 'sale', 'purchase', or 'use' of solar cells and modules in India within the meaning of Article III:4 of the GATT 1994".
231 The United States argues that the DCR measures are 
requirements because SPDs entering into a PPA w ill be legally bound, by contract, to fulfil the 
obligation of using solar cells and modules manufactured in India.232 The United States further 
contends that the DCR measures affect the internal sale, purchase, or use of solar cells and 
modules because they modify the conditions of competition between imported and domestic 
products. Specifically, it is argued that an SPD satisfies the applicable requirements by purchasing and using solar cells and modules made in India, and that this should be considered "internal" because "the requirements apply with respect to the sale, purchase, or use … only inside the 
customs territory of India and not at the border".
233  
7.86.  India did not advance any arguments to contest this element.  7.87.  We note that, in the context of Article III: 4 of the GATT 1994, past panels and the Appellate 
Body have understood the term "affecting" to have a "broad scope of application" in the specific 
context of the impact of domestic content requirements on private operators' choices and incentives.
234 Further, panels have repeatedly found that measures covered by Article III:4 of the 
GATT 1994 include "conditions that an enterprise accepts in order to receive an advantage"235, and 
the Appellate Body has confirmed that measures that "create an incentive" for use of domestic over imported goods can be considered to "affect" the internal sale, purchase, or use of those goods.
236  
7.88.  We consider it relevant to recall our findings above with respect to compliance with the DCR 
measures being "necessary to obtain an advantage", and whether the DCR measures "require the purchase or use by an enterprise of products of domestic origin".
237 The DCR measures operate to 
impose compulsory conditions for bidding eligibility and participation under each of the relevant 
Batches of the National Solar Mission, and furthe r mandate the use of domestically manufactured 
solar cells and modules through enforceable contractual obligations of SPDs. We therefore agree 
with the United States that the DCR measures are properly viewed as "requirements" affecting the 
internal sale, purchase, or use of solar cells and modules in India. 
7.2.4.3  Less favourable treatment 7.89.  The United States submits that, under the National Solar Mission, an SPD "that opts to use 
imported solar cells and/or modules is not eligible to participate in such portion of the program 
subject to" the DCR measures and hence "may not enter into a PPA under the program without undertaking the domestic use commitment".
238 According to the United States, this creates an 
"incentive for SPDs to purchase solar cells and modules made in India", resulting in an alteration 
of the conditions of competition to the detrim ent of such equipment produced in the United 
States.239 
7.90.  India responds that merely drawing regulatory distinctions or providing different  treatment 
does not necessarily amount to "less favourable treatment".240 India contends that "what is 
required is a careful scrutiny of the domestic content provisions in the bid related documents that 
                                               
231 United States' first written submission, para. 57. 
232 United States' first written submission, paras. 59-64. 
233 United States' first written submission, paras. 65-67. 
234 As to the "broad scope of application" denote d by the word "affecting" in Article III:4 of the 
GATT 1994, see Appellate Body Report, US – FSC (Article 21.5) , paras. 210-212. See also Panel Reports, US – 
FSC (Article 21.5 – EC) , paras. 8.147-8.148; Argentina – Import Measures , paras. 6.282-6.286; Turkey – Rice , 
para. 7.222; Canada – Autos , para. 10.80; and India – Autos , para. 7.196. 
235 Panel Report, Canada – Autos , para. 10.73. See also Panel Reports, India – Autos , para. 7.184; 
Turkey – Rice , para. 7.218-7.219; and Argentina – Import Measures , para. 6.277. 
236 Appellate Body Report, China – Auto Parts , para. 196. 
237 See sections 7.2.3.2 and 7.2.3.3 above. 
238 United States' first written submission, para. 70. 
239 United States' first written submission, paras. 71-73. 
240 India's first written submission, paras. 88-91. WT/DS456/R 
 
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  are the subject matter of this dispute"241, and submits a series of factual considerations upon 
which it alleges that the "bidding conditions … have not affected the opportunity for imported solar cells and modules to enter the market".
242 In general, India's counterarguments relate to the 
possibility of using imported solar cells and modules to obtain the same benefits and advantages 
that are otherwise provided to SPDs under the National Solar Mission.243 Drawing upon the partial 
coverage and limited extent of the DCR measures, India highlights the fact that the advantages 
under the National Solar Mission are availabl e to SPDs using imported cells and modules244, and 
the fact that imported solar cells and modules have a dominant market share overall.245  
7.91.  The European Union states that "the aim of  the DCR [measures] is to progressively build up 
domestic production of solar cells and modules", and that inconsistency with Article III:4 of the GATT 1994 need not be based on actual market effects.
246 In addition, the European Union 
expresses doubt as to the relevance of "[a]rguments concerning the current shares of domestic 
and imported solar cells and modules in the total sola r PV installed capacity in India, as well as the 
extent to which imported solar cells and modules may be used in some projects or parts of the 
projects supported under the National Solar Mission".247 The European Union further "recalls that it 
is well established in the case law that incentives to favour domestic products are inconsistent with Article III:4 of the GATT 1994".
248 Japan considers that the DCR measures "generate an incentive 
to purchase and use domestically produced renewable energy generation equipment and hence 
create a disincentive to use imports of such equipment manufactured outside of India".249 In 
Japan's view, arguments regarding the dominant market share of imports "do not address the fact that India's measures create incentives that affect negatively the conditions of competition for 
imported goods".
250 
7.92.  We observe at the outset that less favourable treatment pertains to "whether a measure 
modifies the conditions of competition in the relevant market to the detriment of imported 
products"251, such that "the term 'treatment no less favourable' in Article III:4 requires effective 
equality of opportunities for imported products to compete with like domestic products".252 With 
this standard in mind, we address the arguments raised under Article III:4 of the GATT 1994.  
7.93.  In response to a question from the Panel, In dia confirmed that its position is that there is no 
"less favourable treatment" in this case for three reasons: (a) the scope of the domestic content requirements did not extend to all cells and module s in Phase I (Batch 1) and Phase I (Batch 2) or 
all projects in Phase II (Batch 1), and therefore SPDs  could use and in fact relied on imported cells 
and modules; (b) the same advantages were given to all SPDs selected to participate in the 
National Solar Mission regardless of whether they used imported or domestically manufactured cells and modules; and (c) imported cells and modules currently have a dominant share of the 
                                               
241 India's first written submission, para. 92. 
242 India's first written submission, para. 93. 
243 See India's first written submission, paras. 89 and 92. 
244 See, e.g. India's first written submission, para. 92: "Once SPDs are selected based on the technical 
and financial criteria of the bid process, PPAs are ente red into by NVVN in Phase I (Batch I and Batch II) and 
SECI in Phase II (Batch I). These criteria, and the advantages resulting from the selection, such as guaranteed long-term tariffs in Phase I (Batch I and Batch II), and guaranteed long-term tariffs as well as VGF support in 
Phase II (Batch I), are available for all SPDs, whether or not they use im ported or domestic ally manufactured 
cells and modules." 
245 See, e.g. India's first writte n submission, para. 93: "The afore-mentioned facts indicate that 
imported cells and modules have a do minant share of the market for solar cells and modules in India. The 
bidding conditions under Phase I (Batch I and Batch II), and Phase II (Batch I), have not affected the opportunity for imported solar cells and modules to en ter the market. There is therefore no adverse trade 
effect on their mark et access, and it cannot be said that they are subject to less favourable treatment for the 
purposes of GATT Article III:4." 
246 European Union's third-pa rty submission, para. 31. 
247 European Union's third-pa rty submission, para. 32. 
248 European Union's third-pa rty submission, para. 33. 
249 Japan's third-party submission, para. 11. 
250 Japan's third-party submission, para. 11. 
251 Appellate Body Report, Korea –Various Measures on Beef, para. 137. 
252 Appellate Body Reports, EC – Seal Products , 5.101 (citing Appellate Body Reports, US – Clove 
Cigarettes , para. 176 (referring to GATT Panel Report, US – Section 337 Tariff Act , para. 5.10); China – 
Publications and Audiovisual Products , para. 305 (referring to Appellate Body Report, Korea – Various Measures 
on Beef , paras. 135 and 136); and Thailand – Cigarettes (Philippines) , para. 126 (referring to Appellate Body 
Report, Japan – Alcoholic Beverages II , p. 16)). WT/DS456/R 
 
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  market for solar cells and modules in India.253 In our view, the arguments presented by India 
share a common feature of seeking to place the DCR measures in a larger context, either within the National Solar Mission or the Indian market generally, so as to diminish the restrictive character of the requirements imposed on the use of imported solar cells and modules. 
7.94.  With respect to India's first argument, it is not in dispute that the scope of the domestic 
content requirements did not extend to all cell s and modules in Phase I (Batch 1) and Phase I 
(Batch 2) or all projects in Phase II (Batch 1), an d that SPDs therefore could use, and many in fact 
are using, foreign cells and modules. At the same time, we recall that it is not in dispute that the 
requirements imposed under Phase I (Batch 1) , Phase I (Batch 2), and Phase II (Batch 1 – 
Part A)
254 prohibit the use of certain types of foreign cells or modules, without establishing any 
comparable restriction on domestic cells or modules. The fact that all SPDs participating in the 
National Solar Mission could use (and the fact that some in fact are using) certain types  of foreign 
cells and modules (e.g. thin film solar modules under Phase I) does not negate the fact that the DCR measures accord less favourable treatment to the other  types of foreign cells  and modules 
whose use is prohibited by the requirements in question (e.g. c-Si solar modules in Phase I – 
Batch 2).
255  
7.95.  This is particularly clear in view of the standard under Article III:4 of the GATT 1994, 
according to which panels and the Appellate Body have consistently found less favourable 
treatment to exist where domestic content requirem ents provided some (or even total) allowance 
for use or purchase of imported goods to obtain the relevant benefits. The measures at issue in these other disputes differed factually from the DCR measures in the present case in that they did 
not specify an outright restriction on particular imports as a condition to obtain certain benefits, 
but rather involved more general requirements to use some level of domestic value-added either in terms of unspecified products, services, or co mbination thereof. Even so, we consider these 
cases instructive in applying the standard of less favourable treatment under Article III:4 of the 
GATT 1994 to India's arguments regarding the allowance and actual use of imported solar cells and modules. For example, in US – FSC (Article 21.5) , the panel and Appellate Body examined a 
situation in which the benefits of a measure with domestic content requirements could be obtained 
without necessarily using domestic inputs.
256 These domestic content requirements were defended 
under Article III:4 of the GATT 1994 on the grounds that there was "no obligation to use domestic content", as the respondent in that dispute "u nderline[d], and deem[ed] it fundamental, that 
goods can meet this requirement even if 100 per cent of the fair market value of their inputs is 
foreign".
257 Nevertheless, both the panel and Appellate Body concluded that the domestic content 
requirements created a disincentive to use imported products, notwithstanding the possibility of 
obtaining the benefits in question without necessarily requiring the use of domestic inputs.258 
Importantly, the Appellate Body considered that this  conclusion was "not nullified by the fact that 
the [measure] will not give rise to less favourable treatment for like imported products in each and 
                                               
253 India's response to Panel question No. 15. See also India's first written submission, paras. 89 and 
92. 
254 We recall that there are no exemptions for the us e of imported solar cells and modules by SPDs in 
Phase II (Batch 1 – Part A), which is explicitly design ated as a "DCR" portion of Phase II (Batch 1). See 
Phase II (Batch 1) Guidelines , (Exhibits USA-7), Section 2.6(E); and Phase II (Batch 1) Request for Selection  
document, (Exhibit USA-12), Section 1.1.4; India's first written submission, para. 83. 
255 As argued by the United States, "[u]nder Arti cle III of the GATT 1994, compliance with national 
treatment for some  products does not excuse a Member from its obligation to comply with national treatment 
with respect to all products." United States' response to Pa nel question No. 13(b), para. 30. (emphasis 
original) The European Union makes a similar point in stating that "[e]ven if the DCRs cover only one portion of the market, they would still be requirements with which compliance is mandatory in order to have access to an 
advantage in respect of that portion of the market."  European Union's third-pa rty submission, para. 28. 
256 The domestic content requirements challenged in that dispute were in the form of a tax exemption 
on income derived from the foreign sale of products, of which more than 50 per cent of the fair market value 
was attributable to articles made, or  costs of labour performed, inside th e United States (referred to as the 
"fair market value rule "). See Panel Report, US – FSC (Article 21.5)  US – FSC (Article 21.5 – EC) , para. 8.123. 
See also Appellate Body Report, US – FSC (Article 21.5) , paras. 21 and 197. 
257 Panel Report, US – FSC (Article 21.5 – EC) , para. 8.152. 
258 See, e.g. Appellate Body Report, US – FSC (Article 21.5) , para. 220, and Panel Report, US – FSC 
(Article 21.5) , para. 8.157 ("That there may exist other ways to impute permissible fair market value in order 
to obtain qualifying foreign trade property does not vitiate the fact that this incentive inherently advantages domestic goods and that less favourable treatment is thereby accorded to imported  goods than to domestic 
goods"). WT/DS456/R 
 
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  every case".259 Other panels have similarly held that measures imposing domestic content 
requirements modified conditions of competition to the detriment of like imported products, notwithstanding their partial coverage and/or the existence of other means of obtaining an advantage afforded under the measure in question.
260 
7.96.  With respect to India's second argument, it is not in dispute that the same advantages were 
given to all SPDs selected to participate in the National Solar Mission regardless of whether they used imported or domestically manufactured cells and modules. However, we fail to see the legal 
relevance of the fact that the same advantages were given to all selected SPDs regardless of 
whether they used domestically manufactured cells and modules, or instead foreign cells or modules not disallowed by the DCR measures. The proper focus of the examination of less 
favourable treatment under Article III:4 of the GATT 1994 in this case is not whether SPDs  using 
permitted types of foreign cells or modules are accorded less favourable treatment than SPDs 
using domestic cells or modules. Rather, the focus of the examination is on the foreign products whose use is prohibited under the DCR measures that are the subject of the less favourable 
treatment claimed by the United States. The less favourable treatment accorded to the types of 
foreign products whose use is prohibited under the applicable DCR measures is not negated by the fact that SPDs using other types of foreign products obtain the same benefits as SPDs using 
domestic cells and modules.  
7.97.  With respect to the third argument, it is not in dispute that imported cells and modules 
currently have a dominant share of the market for solar cells and modules in India. However, India has not explained the legal relevance of the fact that imported cells and modules currently have a 
dominant share of the market for solar cells and modules in India, and that the DCR measures at 
issue affect a relatively small amount of production.
261 Insofar as this argument is premised on the 
view that "less favourable treatment" is limited to some threshold degree of detrimental impact, or 
that less favourable treatment can be counterbalanced by the continued existence of other 
competitive opportunities, we see no basis in the text of Article III:4 of the GATT 1994 or related jurisprudence to support this view. India has not specifically argued or provided any support for 
the position that Article III:4 of the GATT 1994 is qualified by a de minimis standard
262, or that 
                                               
259 Appellate Body Report, US – FSC (Article 21.5) , para. 221. Despite instances in which the domestic 
content requirements would not "bear upon the inpu t choices manufacturers make", the Appellate Body 
considered that "the fact remains that in an indefinite  number of other cases, th e [measure] operates, by its 
terms, as a significant constraint upon the use of imported input products.  We are not entitled to disregard that fact." 
260 The panel in Canada – Autos addressed various arguments made wi th respect to domestic content 
requirements that could be satisfied by use of domestically produced go ods in addition to other forms of 
domestic "value-added" to qualify for an exemption from the generally applicable customs duty. The panel 
found that "the equality of competitive opportunities betw een domestic and like imported  products is affected if 
a measure accords an advantage to the sale or use of do mestic products but not to the sale or use of like 
imported products, regardless of whether or not that advant age can also be obtained by other means ". Panel 
Report, Canada – Autos , para. 10.87. (emphasis added)  Consequently, the panel considered that the denial of 
competitive opportunities by according advantages to the use of domestic products "i s not negated by the fact 
that the advantage may also be obtained by other means than sale or use of domest ic products". Panel Report, 
Canada – Autos , para. 10.87. 
The panel in India – Autos  addressed claims against an indigeni zation requirement according to which 
certain percentages of dome stic content had to be reached as a co ndition to import automobile parts and 
components, and found that "the very  nature of the indigenization requ irement generates an incentive to 
purchase and use domestic products and hence creates a disincentive to use like imported products". Panel Report, India – Autos , para. 7.201. The panel thus concluded that  this "requirement clearly modifies the 
conditions of competition of domestic  and imported parts and components in  the Indian market in favour of 
domestic products ." Panel Report, India – Autos , para. 7.202. 
261 India argues, for example, that imported solar cells and modules pl ay a significant role in India's 
solar industry, and that the bidding conditions of the Na tional Solar Mission "have no t affected the opportunity 
for imported solar cells and modules to  enter the market". India's opening statement at the first meeting of the 
Panel, paras. 22-23. 
262 The panel in China – Publications and Audiovisual Products  rejected the view "that a lack of 
'significant' alteration in the cond itions of competition would mean that [the respondent] has fulfilled its 
obligation to treat the imported products no less favourably than the like domestic products". The panel "note[d] that the phrase 't reatment no less favourable' is not qualified by a de minimis  standard" and that, 
"[a]ccordingly, any less favourable treatment of impo rted products … is contrary to the obligation in 
Article III:4, provided such treatment modifies the cond itions of competition to the detriment of imported 
products". Panel Report, China – Publications and Audiovisual Products , para. 7.1537.  
 WT/DS456/R 
 
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  less favourable treatment is negated when imported products might still have opportunities for 
market access through alternative channels.263  
7.98.  Based on the foregoing, we are unpersuaded by the arguments advanced by India relating 
to the absence of "less favourable treatm ent" under Article III:4 of the GATT 1994.  
7.2.5  Conclusion on Article 2.1 of th e TRIMs Agreement and Article III:4 of the 
GATT 1994  
7.99.  We have found that the DCR measures fulfil the requirements of paragraph 1(a) of the 
TRIMs Agreement, thus establishing that they ar e inconsistent with Article III:4 of the GATT 1994 
and thereby Article 2.1 of the TRIMs Agreement. Based on our separate and additional examination of the legal elements of Article III: 4 of the GATT 1994, which we have conducted in 
the particular circumstances of this case, we also conclude that the DCR measures accord less 
favourable treatment under Article III:4 of the GATT 1994. We now turn to whether the DCR 
measures are exempted from the obligations of Article III by virtue of the derogation in Article III:8(a) of the GATT 1994. 
7.2.6  Article III:8(a) of the GATT 1994  
7.2.6.1  Introduction 7.100.  Article III:8(a) of the GATT 1994 provides: 
The provisions of this Article shall not apply to laws, regulations or requirements 
governing the procurement by governmental  agencies of products purchased for 
governmental purposes and not with a view to  commercial resale or with a view to use 
in the production of goods for commercial sale. 
7.101.  India submits that the government procur ement derogation under Article III:8(a) of the 
GATT 1994 is applicable to the DCR measures, and that, by virtue of this derogation, the DCR measures are not inconsistent with Article III: 4 of the GATT 1994 or Article 2.1 of the TRIMs 
Agreement.
264  
7.102.  The United States contests the applicability of this derogation to the DCR measures with 
respect to certain elements under Article III:8(a) of the GATT 1994. In particular, the United 
States argues that the "products purchased" by India (electricity) under the DCR measures are not 
in a competitive relationship with the products subject to discrimination (solar cells and modules). In this respect, the United States considers th e present case to be indistinguishable from the 
relevant circumstances in Canada – Renewable Energy / Feed-In Tariff Program , and that the 
present facts similarly lead to the conclusion that Article III:8(a) of the GATT 1994 is inapplicable. 
                                                                                                                                               
The panel in Canada — Wheat Exports and Grain Imports  similarly rejected the proposition that analysis 
of less favourable treatment should turn on the degree of burden imposed on imported products. In the view of 
that panel, "[t]hat the requirement in question may not be very onerous in commercial and/or practical terms 
does not, in our view, detract from the fact that it is  an additional requirement not imposed on like domestic 
grain". Panel Report, Canada — Wheat Exports and Grain Imports , para. 6.190. In this regard, the panel 
further noted that "[n]either the text of Article III :4 of the GATT 1994 nor GATT/WTO jurisprudence indicates 
that there is a de minimis exception to the 'no less fa vourable treatment' standard in Article III:4". Panel 
Report, Canada — Wheat Exports and Grain Imports , fn 281. 
263 See, e.g. Panel Reports, Canada — Wheat Exports and Grain Imports , paras. 6.211-6.213; 
Dominican Republic – Import  and Sale of Cigarettes , para. 7.192. We further note that, "[i]n WTO 
jurisprudence under Article III, offsetting less favour able treatment of some imported products with more 
favourable treatment of other imported products  has been rejected." Appellate Body Report, India – Additional 
Import Duties , fn 405. While we do not understand India to argu e that the market share of imported solar cells 
and modules amounts to more favourable treatment, we consider that th e rejection of this as a defence to less 
favourable treatment would apply a fortiori  to an argument that the conti nued market access for some imports 
offsets the detrimental impact on the competitive opportunties of other impo rts. See Panel Report, US – 
Gasoline , para. 6.14. 
264 See India's first written submission, paras. 101-164; India's opening statement at the first meeting 
of the Panel, paras. 24-31; India's responses to Panel question Nos. 19-24; India's second written submission, 
paras. 14-45; India's opening statement at the second meeting of the Panel, paras. 4-12; India's responses and comments on the United States' responses to Panel question Nos. 41-55. WT/DS456/R 
 
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  The United States additionally disputes whether products are purchased under the DCR measures 
"for governmental purposes and not with a view to commercial resale" in accordance with Article III:8(a) of the GATT 1994.
265 The United States does not dispute that the DCR measures 
qualify as "laws, regulations or requirements go verning procurement", and that this procurement 
is by "governmental agencies". 
7.103.  Canada, the European Union, Japan, an d Norway agree with the United States and 
consider that the situation in the present case is analogous to that examined in Canada – 
Renewable Energy / Feed-In Tariff Program regarding the applicability of Article III:8(a) of the 
GATT 1994.266  
7.104.  The Appellate Body interpreted Article III:8(a) for the first time in Canada – Renewable 
Energy / Feed-In Tariff Program . The Appellate Body explained that this provision "establishes a 
derogation from the national treatment obligation of Article III for government procurement 
activities falling within its scope".267 Moreover, the Appellate Body determined that "the application 
of Article III:8(a) of the GATT 1994 is not preclude d where the challenged measure falls within the 
scope of Article 2.2 and paragraph 1(a) of th e Illustrative List of the TRIMs Agreement".268 As a 
result, measures covered by the government procurement derogation in Article III:8(a) of the GATT 1994 are exempt from – and thus not inco nsistent with – the obligation of national 
treatment provided for in Article III:4 of the GA TT 1994 and referred to in Articles 2.1 and 2.2 and 
paragraph 1(a) of the Illustrative List of the TRIMs Agreement.
269  
7.105.  In order for a measure to be exempted from the obligations in Article III:4 of the 
GATT 1994 and Articles 2.1 and 2.2 and paragraph 1(a) of the Illustrative List of the TRIMs 
Agreement, the various requirements set out in th e text of Article III:8(a) must be met. These 
requirements are that: (a) the measures in ques tion are "laws, regulations, or requirements 
governing procurement"; (b) the procurement is "b y governmental agencies"; (c) the procurement 
is of products purchased "for governmental purposes"; and (d) the products purchased are not 
procured "with a view to commercial resale or with  a view to use in the production of goods for 
commercial sale". The Appellate Body has explained that these requirements are cumulative in 
nature, such that a measure failing to meet any one of those requirements will not be exempted 
from the national treatment obligations of Arti cle III:4 of the GATT 1994 and Article 2.1 of the 
TRIMs Agreement.270  
7.106.  In addition to these elements, there is  a threshold matter of the applicability of 
Article III:8(a) in respect of the "products purchased" under the DCR measures. This was the 
dispositive factor of the Appellate Body's analysis in Canada – Renewable Energy / Feed-In Tariff 
Program , and a primary issue of contention between th e parties in this dispute is the pertinence, 
                                               
265 See United States' first written submission, paras. 74-79; United States' opening statement at the 
first meeting of the Panel, paras. 21-38; United States' second written submission, paras. 13-32; United 
States' opening statement at the second meeting of the Panel, paras. 12-20; United States' responses and comments on India's responses to Panel question Nos. 41-55. 
266 Canada's response to Panel question No. 2 to the third parties, para. 9; European Union's response 
to Panel question No. 2 to the third parties, para. 8 an d third-party submission, para . 36; Japan's response to 
Panel question No. 2 to the third parties and third-party submission, para. 4; Norway's third-party statement, 
paras. 5-6. 
267 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.56. 
268 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.29. 
269 The Appellate Body noted that "Art icle III:8(a) is a derogation limiting the scope of the national 
treatment obligation and it is not a justification for meas ures that would otherwise be inconsistent with that 
obligation." Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.56. The 
Appellate Body further considered th at "the characterization of the prov ision as a derogation does not pre-
determine the question as to which party bears the burden  of proof with regard to the requirements stipulated 
in the provision". Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.56.  
Like the Appellate Body in Canada – Renewable Energy / Feed-In Tariff Program , we do not consider it 
necessary for our analysis and conclusi ons in this dispute to decide upon which party, as a general rule, bears 
the burden of proof with regard to the requirements of Article III:8(a).  Insofar as the parties' arguments 
primarily raise questions of law concerning the interpreta tion and scope of the derogation in Article III:8(a), as 
opposed to disputed questions of fact, we note that, "[c]onsistent with the principle of jura novit curia , it is not 
the responsibility of the [parties] to provide us with the legal interpretation to be given to" the provisions of Article III:8(a). Appe llate Body Report, EC – Tariff Preferences , para. 105.   
270 See Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , paras. 5.57, 
5.69, and 5.74. WT/DS456/R 
 
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  or distinguishability, of the Appellate Body's findin gs and reasoning in that dispute. After assessing 
this threshold matter, we then consider the parties arguments with respect to the remaining elements of Article III:8(a).  
7.2.6.2  Applicability of Article III:8(a) in respect of the "products purchased" under the 
DCR measures 
7.107.  The United States contends that the DCR measures are not exempted under 
Article III:8(a) because India acquires electricity under the PPAs, whereas the products that are 
subject to requirements affecting their sale, purchase, or use are solar cells and modules.
271 The 
United States further argues based on Canada – Renewable Energy / Feed-In Tariff Program that 
the product procured (electricity) is not in a competitive relationship with the product being discriminated against (solar cells and modules), and that such discrimination is therefore not 
covered by the derogation of Article III:8(a).
272 The United States further disputes India's 
characterization of solar cells and modules as "inputs" into electricity, and challenges the legal relevance of that characterization to the analysis under Article III:8(a).
273 
7.108.  India contests the applicability of Canada – Renewable Energy / Feed-In Tariff Program to 
the facts of the present dispute, and submits th at "[t]he reasoning by the Appellate Body in 
Canada – Renewable Energy / Feed-In Tariff Program  cannot be read out of context to fit into all 
sets of facts and circumstances that are sought to be pleaded under Article III:8(a)".274 
Specifically, India understands the facts of that dispute to have involved "the use of designated percentages of equipment for setting up a renewable energy generation facility" and domestic content requirements "pertain[ing] to the entire electricity generation facility".
275 India argues that 
the Appellate Body's reasoning in Canada – Renewable Energy / Feed-In Tariff Program "needs to 
be seen in the context of the products in qu estion which pertained to a range of equipment 
required for the 'development and construction of' the electricity generation facility as a whole".276 
According to India, the focus of the domestic content requirements in Canada – Renewable Energy 
/ Feed-In Tariff Program "was therefore on certain designated activities in a power plant, rather 
than on the electricity generated from such equipment".277 
7.109.  India contrasts the focus of the DCR measures at issue in the present dispute with the 
factual context of Canada – Renewable Energy / Feed-In Tariff Program on the grounds that 
"[s]olar cells and modules do not have any purpose other than generating solar power [and] are intrinsic to solar power"
278, and thus "cannot be treated as distinct from the generation of solar 
power".279 Citing the "focus" of the DCR measures "on generation of solar power from Indian 
manufactured solar cells and modules"280, India argues that the DCR measures "effectively seek to 
procure solar cells and modules that result in solar power generation".281 India emphasizes that 
"solar cells and modules are integral inputs  for the generation system" as contrasted with "all 
other components of a PV generation plant [that] can be classified as ancillary equipment".282 
According to India, the Appellate Body "left open space for a different analysis when the 
                                               
271 United States' first written submission, paras. 75-76. 
272 United States' first written submission, paras. 77-79. 
273 United States' second written submission, paras. 13-20. 
274 India's first written submission, para. 104. 
275 India's first written submission, para. 108. 
276 India's first written submission, para. 109. India further refers to the "regulatory requirement in 
Canada – Renewable Energy / Feed-In Tariff Program  … that each wind power, Solar PV project and solar 
microFIT project contain a defined perc entage of domestic cont ent" and the fact that "the methodology for the 
calculation of the domestic content level was linked to a range of different designated activities". 
277 India's first written submission, para. 109. See also India's opening statement at the first meeting of 
the Panel, para. 26 ("The focus of  the domestic content requiremen ts under Canada's programme was 
therefore on materials and activities for the 'development  and construction of' the power plant, including labour 
requirements for such construction an d development, rather than on genera tion of electricity from the plant"). 
278 India's first written submission, para. 111. 
279 India's first written submission, para. 111. 
280 India's first written submission, para. 112. See also India's opening statement at the first meeting of 
the Panel, para. 26 ("By purchasing electricity, the Go vernment in effect seeks to  facilitate procurement of 
solar cells and modules that result in solar power generation"). 
281 India's first written submission, para. 112. 
282 India's second written submission, para. 20. (emphasis original) WT/DS456/R 
 
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  discrimination is on inputs for a product that is purchased".283 India thus distinguishes inputs of a 
"fundamental, integral and intrinsic" nature and submits that "the key issue for consideration by the Panel is whether the derogation under Article III:8(a) may also extend to discrimination relating to inputs such as solar cells and modules that are used in respect of the electricity 
purchased by way of procurement".
284 
7.110.  India additionally argues that "[t]o deny the characterization of 'government procurement' 
to India's method of procuring solar cells and modules … would inadvertently narrow the scope and 
intent of Article III:8(a)."285 India contends that this would limit the ways a government could 
"effectively procure solar cells and modules under Article III:8(a)", which "would be an unnecessary intrusion into the nature and exercise of government actions relating to procurement of solar power".
286 
7.111.  In Canada – Renewable Energy / Feed-In Tariff Program , the Appellate Body determined 
that "the scope of the terms 'products purchased' in Article III:8(a) is informed by the scope of 'products' referred to in the obligations set out in other paragraphs of Article III. Article III:8(a) 
thus concerns, in the first instance, the product that is subject to the discrimination."
287 On this 
basis, the Appellate Body considered the product subject to discrimination to be the reference point for the "products purchased" in Article III:8(a) and, thus, the scope of the government 
procurement derogation:  
The coverage of Article III:8 extends not only to products that are identical to the 
product that is purchased, but also to "like" products. In accordance with the Ad Note to Article III:2, it also extends to products that are directly competitive to or 
substitutable with the product purchase d under the challenged measure. For 
convenience, this range of pr oducts can be described as products that are in a 
competitive relationship .
288 
7.112.  Applying the criterion of a "competitive relationship" to the specific facts and products at 
issue in Canada – Renewable Energy / Feed-In Tariff Program , the Appellate Body found as 
follows: 
In the case before us, the product being procured is electricity, whereas the product 
discriminated against for reason of its origin is generation equipment. These two products are not in a competitive relationship. None of the participants has suggested otherwise, much less offered evidence to substantiate such proposition. Accordingly, 
the discrimination relating to generation equipment contained in the FIT Programme 
and Contracts is not covered by the derogation of Article III:8(a) of the GATT 1994.
289 
7.113.  The Appellate Body thus framed the applic ability of Article III:8(a) according to whether 
the particular products subject to discrimination are in a "competitive relationship" with the 
products purchased under the measures in question. We recall from our analysis of the United States' national treatment claims above that the products subject to discrimination in this dispute 
are solar cells and modules originating in the United States. We further note India's position that 
the government does not "purchase" solar cells and modules as it "does not physically acquire or take custody of the solar cells and modules, and instead chooses to buy the solar power generated 
from such cells and modules".
290 Thus, an approach paralleling that of the Appellate Body in 
Canada – Renewable Energy / Feed-In Tariff Program would entail a comparison of solar cells and 
modules with the generated electricity that is purchased in order to ascertain whether these products are in a "competitive relationship". 
                                               
283 India's second written submission, para. 23. 
284 India's second written submission, para. 23. 
285 India's first written submission, para. 114. 
286 India's opening statement at the first meeting of the Panel, para. 29. 
287 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.63. 
288 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.63. 
(emphasis added) 
289 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.79. 
290 India's first written submission, para. 114. WT/DS456/R 
 
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  7.114.  However, India has clarified that, in this dispute, "[i]t is not India's argument that 
electricity and solar cells and modules are in a competitive relationship. Instead, the essence of 
India's argument is that even though the Government does not take title or custody of solar cells and modules , by purchasing electricity generated from such cells and modules, it is effectively 
procuring the cells and modules."
291 India's argument that it is "effectively procuring" solar cells 
and modules through the DCR measures rests on what it considers to be a "key factual distinction" with Canada – Renewable Energy / Feed-In Tariff Program involving "the nature of the products in 
question".
292 In particular, India stresses that the DCR measures "are applicable only to solar cells 
and modules, as opposed to [ Canada – Renewable Energy / Feed-In Tariff Program ] where 
domestic content requirements were applicable cumulatively on a wide range of equipment and services required to construct and maintain a solar power generation system."
293 With respect to 
the legal test under Article III:8(a), India submits that the Appellate Body "acknowledged that 
there may be situations wherein the products purchased are quite different from the inputs that have been discriminated upon", and therefore "left room for interpretation based on the facts 
before a panel" when the products purchased are not themselves in a competitive relationship with 
the product subject to discrimination.
294  
7.115.  Thus, we do not understand India to argue that we should deviate from the interpretation 
of Article III:8(a) developed by the Appellate Body in Canada – Renewable Energy / Feed-In Tariff 
Program . To the contrary, the arguments on the interpretation of Article III:8(a) advanced by the 
parties in this case appear to be based on thei r opposing understandings of the Appellate Body's 
findings and reasoning in Canada – Renewable Energy / Feed-In Tariff Program . We are therefore 
not presented with the question of whether we should deviate from the Appellate Body's findings 
and reasoning in that case295; rather, we are presented with the question of how the Appellate 
Body's findings and reasoning under Article III:8(a) should apply to the DCR measures at issue in 
this dispute. 
7.116.  We first examine India's contention that solar cells and modules are "inputs" whose 
coverage under Article III:8(a) was left open by the Appellate Body in Canada – Renewable Energy 
/ Feed-In Tariff Program, and we then examine India's contention that the DCR measures are 
factually distinguishable from those before the Appe llate Body in that dispute in that they pertain 
only to solar cells and modules and not to a wider range of equipment that do not constitute integral inputs into the product that is purchased. 
7.117.  With respect to the argument that Arti cle III:8(a) of the GATT 1994 may not require in 
every case a "competitive relationship" between the relevant products, India contends that the 
                                               
291 India's opening statement at the first meeting of the Panel, para. 28. (emphasis original) 
292 India's opening statement at the first meeting of the Panel, para. 26. India explains that solar 
photovoltaic (PV) technology transforms  sunlight directly into electricity by relying on the property of semi-
conducting materials that enables them to conduct electricity when heated or combined with other substances. 
A solar cell, or photovoltaic (PV) cell, is an electric al device that converts the energy of light directly 
into electricity by the photovoltaic effect. India argues  that solar cells and modules are not distinct from solar 
power itself because of the fundamental characteristics of solar cells and modules in absorbing light energy, which releases electrons and thereby generates electricity, and that it is this aspect which defines their integral 
role in solar power generation. India has further explaine d that the most commonly used material used in solar 
cells and modules, i.e. silicon, is essentially a semi-conducting material that produces the photovoltaic effect, 
which is basically  photons of light which excite electrons in the silicon into a higher state of energy, thereby 
allowing them to act as charge carriers for an electric current. India explains that t he photons of light come 
from sunlight, whereas the electrons, which are the carriers of electric current, come from the silicon in the solar cells and modules. India states that sunlight falling on any other material such as  stone, or water, will not 
release electrons, and in fact, there is no other part or  any system which is requir ed to produce this effect. 
India's submission is that this characteristic of solar cells and modules means that any purchase of solar energy is in essence a procurement of the solar cells and modules, which have no meaning or existence other 
than producing solar electricity. India's first written submission, paras 110; India's second written submission, para 19; India's comments to the United States ' response to Panel Qu estion 43, para 11. 
293 India's opening statement at the second meeting of the Panel, para. 6. 
294 India's opening statement at the second meeting of the Panel, para. 5. See also India's response to 
Panel question No. 41. 
295 The present case is therefore distinguishable from other cases in which one of the disputing parties 
argued that a panel should deviate from a legal interpre tation of the covered agre ements arrived at by the 
Appellate Body. For example, see Appellate Body Reports, US – Stainless Steel (Mexico) , paras. 154-162; US – 
Continued Zeroing , para. 358-365; and Panel Reports, China – Rare Earths , paras. 7.55-7.61; US – 
Countervailing and Anti-Dumping Measures (China) , paras. 7.311-7.317. WT/DS456/R 
 
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  Appellate Body "left open space for a different analysis when the discrimination is on inputs for a 
product that is purchased".296 India argues further that, "[i]f the discrimination is on inputs and 
processes of production, this will not be in a competitive relationship with the product being actually purchased", but that "when a product being discriminated against is an integral input for 
generation or production of the product that is  finally purchased, the derogation under Article 
III:8(a) is available for such products".
297 In support of this position, India relies on the following 
passage from Canada – Renewable Energy / Feed-In Tariff Program : 
What constitutes a competitive relationship between products may require 
consideration of inputs and processes of production used to produce the product. In its rebuttal of Canada's claim under Article III:8(a), the European Union acknowledges that the cover of Article III:8(a) may also extend to discrimination relating to inputs 
and processes of production used in respect of products purchased by way of 
procurement.
298 Whether the derogation in Article III:8(a) can extend also to 
discrimination of the kind referred to by the European Union is a matter we do not 
decide in this case.299 
7.118.  We note that the Appellate Body did not provide any specific indication of how "inputs and 
processes of production" would pertain to the question of whether products are in a competitive 
relationship; nor did it apply these considerations to the facts of Canada – Renewable Energy / 
Feed-In Tariff Program . The Appellate Body referred to "consideration of inputs and processes of 
production" as being potentially relevant to " [w]hat constitutes a competitive relationship between 
products ". This reference to "inputs and processes of production" would seem to elaborate, rather 
than displace, the basic standard of products being in a competitive relationship under Article 
III:8(a) of the GATT 1994. In other words, the fi rst sentence of the passage cited above leaves 
open the possibility that a consideration of inpu ts and processes of production would inform an 
assessment of whether the products subject to  discrimination are "like" and/or "directly 
competitive to or substitutable with the product purchased under the challenged measure".300 We 
do not understand India to argue otherwise.  
7.119.  Rather, we understand India's argument to be that when the Appellate Body, in the second 
and third sentences of the passage cited above, referred to (and expressly declined to decide) whether "the cover of Article III:8(a) may also extend to discrimination relating to inputs and processes of production used in respect of products purchased by way of government 
procurement", it was no longer referring to the question of "[w]hat constitutes a competitive 
relationship between products", but was rather introducing the possibility of an alternative to the "competitive relationship" standard in a situation involving discrimination against "inputs and 
processes of production". Thus, we understand In dia's argument to be that the Appellate Body 
"left open space"
301 for the possibility that consideration of inputs and processes of production 
could enter into the analysis under Article III:8(a) in two different ways: first, for the limited 
purpose of informing the determination of whether two products are in a competitive relationship; 
and second, to create a potential alternative to the "competitive relationship" standard in certain circumstances. 
7.120.  We do not consider it necessary in the present dispute to resolve whether the Appellate 
Body left room for an alternative to the "competitive relationship" standard, or to decide, in the 
                                               
296 India's second written submission, para. 23. 
297 India's response to Panel question No. 19. 
298 (footnote original) The European Union explains that , when it refers to product "characteristics", it 
does so not as necessarily referring to  physically detectable ch aracteristics, but as refe rring to elements that 
define the nature of the product more  broadly. The European Union submit s that the environmental profile or 
the environmental attributes that a particular product may incorporate, even if they do not materialize into any particular physical characte ristic, could legitimately form part of the requirements of the product purchased 
that are closely related to the subject matter of the contract. (European Union's other appellant's submission 
(DS426), fn 43 to para. 51) 
299 Appellate Body Report, Canada – Renewable Energy / Feed-in Tariff Program , para. 5.63. 
300 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.63. As 
suggested by the United States, this could be underst ood to mean that "where product A and product B are 
comprised of similar inputs (or manufac tured through similar processes), this might  suggest that product A and 
product B are 'like products' or in a competitive relationship". United States' response to Panel question No. 41, para. 4. (emphasis original) 
301 India's second written submission, para. 23. WT/DS456/R 
 
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  abstract, the meaning of "inputs and processes of production" as used by the Appellate Body in 
Canada – Renewable Energy / Feed-In Tariff Program . The reason, as elaborated below, is that we 
are not persuaded that the measures at issue in this case are distinguishable in any relevant respect from those examined by the Appellate Body in Canada – Renewable Energy / Feed-In 
Tariff Program.  In applying Article III:8(a) to closely analogous facts that involved the purchase of 
electricity and discrimination against generation equipment, the Appellate Body stated that the derogation "extends" to products in a "competitive relationship"
302 and disposed of the case on the 
grounds that "electricity" and "generation eq uipment" are not in such a relationship.303 As we 
explain below, we consider that we are presente d in this dispute with a similar situation, and 
India's arguments on the "effective procurement" of "integral inputs" are incompatible with the interpretation and application of Article III:8(a) in Canada – Renewable Energy / Feed-In Tariff 
Program .  
7.121.  The parties debate whether solar cells and modules can accurately be characterized as 
"inputs" into the electricity they are used to generate. The United States considers that India 
"relies on a factual assumption that solar panels and modules are an input to the generation of 
solar power, but they are actually capital equipment that is not consumed or incorporated in the power generated".
304 Whereas the United States asserts than an "input" should be "incorporated 
into or otherwise physically detectable" in a finished product305, India considers that the term 
"input" may "refer to any resources or materials th at are required to obtain a desired output" and 
that "the test of physical detection of an input cannot be used as a decisive factor".306 The parties 
have debated various facets of what the Appellate  Body may have intended in its reference to 
"inputs", and of the application of this concept to solar energy.307 The parties' disagreement in this 
regard turns on issues that the Appellate Bo dy considered it unnecessary to resolve in Canada – 
Renewable Energy / Feed-In Tariff Program ; for the reasons detailed in this section, it is similarly 
unnecessary for us to resolve these issues for the purposes of applying Article III:8(a) to the DCR 
measures at issue in the present dispute.  
7.122.  Apart from whether solar cells and modules can even be considered "inputs" into electricity 
in the sense intended by the Appellate Body, Indi a's arguments further hinge upon whether "solar 
cells and modules are integral inputs  for the generation system" as contrasted with "all other 
components of a PV generation plant [that] can be classified as ancillary equipment".308 In support 
                                               
302 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.63. 
303 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.79. 
304 United States' second written submission, para. 17. 
305 United States' second written submission, para. 20. 
306 India's response to Panel question No. 42, paras. 8 and 10. 
307 A primary focus of the parties' disagreement is wh ether the term "input" is necessarily confined to 
objects that are physically detectable or incorporated into a finished produc t. India posits that "the key issue 
for consideration is the relationship between solar cells and modules and electricity", and further that "solar cells and modules are clearly resources/ inputs that are integral to the ge neration of solar power, and their 
physical manifestation in the electricity so generated is not a relevant criterion for consideration". India's response to Panel question No. 42, para. 13. The United States considers that the juxtaposition with "processes 
of production" indicates an understanding of the term  "inputs" as being "raw materials, consumed in 
production of a finished product". United States' respon se to Panel question No. 42,  para. 11. Applying this 
logic to "solar power electricity", the United States  submits that "sunlight (or light energy) could be 
characterized as an 'input'" in that "[s]olar cells and modules convert light into electricity. Light energy is 
therefore arguably physically incorporated into solar power electricity." United States' response to Panel question No. 42, para. 13.  See also Canada's third-part y statement, paras. 9-12; Ca nada's response to Panel 
question No. 2 to the third parties, para. 11 ("Canada considers that generation equipment do not constitute direct inputs incorporated into the solar power being purchased.  They are not physically detectable in the 
power being purchased."). 
We note that the Appellate Body in Canada – Renewable Energy / Feed-in Tariff Program  explicitly 
declined to decide on whether the concept of "inputs an d processes of production" is confined to objects that 
are physically detectable or incorpor ated into the finished product that  is purchased. In particular, the 
Appellate Body noted the European Union's sugge stion regarding non-physical incorporation of 
"characteristics", such as "the envi ronmental profile or the environmental attributes that a particular product 
may incorporate", before stating that  "[w]hether the derogation in Ar ticle III:8(a) can extend also to 
discrimination of the kind referred to  by the European Union is a matter we do not decide in this case." Canada 
– Renewable Energy / Feed-in Tariff Program , para. 5.63 and fn 499. Thus, the Appellate Body specifically 
raised, and declined to apply, the notion of non-physical incorporation in determining whether "the cover of Article III:8(a)" extended  to governmental purchase of electricity. 
308 India's second written submission, para. 20. (emphasis original) WT/DS456/R 
 
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  of this distinction between "integral inputs" and all other "ancillary equipment", India points to the 
indispensability of solar cells/modules for the generation of solar power, and the exclusivity of their function for that purpose. India specifically argues that "solar power can in fact be generated solely with solar cells and modules"
309 and that the "key determinative fact for consideration by 
the Panel" is that "no solar electricity can be generated without solar cells and modules; however 
solar electricity can still be generated without all other ancillary equipment".310  
7.123.  However, we observe that the "generation equipment" at issue in Canada – Renewable 
Energy / Feed-In Tariff Program included the exact same products, i.e. solar cells and modules, 
which were used to generate electricity purchase d by the government. It is noteworthy that the 
Appellate Body gave no indication of these, or an y other type of equipment, being an "input" that 
would be relevant to the analysis under Article III:8(a) of the GATT 1994, nor did it make any 
distinction between inputs of an "integral" or "ancillary" nature. 
7.124.  In this connection, despite its argument regarding the "range of equipment" and 
"designated activities" that allegedly distinguish the facts of the present dispute from those in 
Canada – Renewable Energy / Feed-In Tariff Program , India acknowledges that "the range of 
equipment included solar cells and/or modules".311 We note the explanation of the panel in Canada 
– Renewable Energy / Feed-In Tariff Program  that the "domestic content level of a contract facility 
is calculated pursuant to a methodology" involving certain "Qualifying Percentages" associated 
with a range of different "Designated Activities".312 This methodology applied to facilities 
generating electricity exclusively from certain sources of renewable energy, including solar photovoltaic energy.
313 Notwithstanding the various possible combinations of "designated 
activities" through which contract facilities could satisfy the "Minimum Required Domestic Content 
Level", the panel found that the measures "require[d] … electricity generators using solar PV technology … to purchase or use a certain percen tage of renewable energy generation equipment 
and components that are sourced in Ontario".
314  
7.125.  India is correct in observing that the requirements in Canada – Renewable Energy / Feed-
In Tariff Program pertained to other activities for the development and construction of facilities 
that are not covered by the DCR measures in the present dispute, such as construction costs, 
consulting services, and other labour and services.315 However, the panel in that dispute found 
that such other activities could not alone meet  the "Qualifying Percentages" for the Minimum 
Required Domestic Content Level, and that the measures effectively imposed a requirement to use 
domestically-sourced "goods" or "generation equipment and components" in order to achieve the 
necessary level of domestic content.316 With respect to these goods and equipment, the panel did 
                                               
309 India's second written submission, para. 21. 
310 India's second written submission, para. 21. India also contends that it is a "fundamental 
characteristic of solar cells and modules – i.e. their inherent and intrinsic property of being able to absorb light energy  and convert it to electrons, and thereby genera te electricity, which defines them as inputs that are 
integral for solar power generation". India's second written submission, para. 22. See also India's opening 
statement at the second meeting of the Panel, para. 6. 
311 India's response to Panel question No. 20(a). S ee also India's first written submission, para. 108 
(referring to "the use of designated percentages of equipment  for setting up a renewable energy generation 
facility"). 
312 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.159. 
313 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.66. 
314 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.163. 
315 See Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.161, India's 
response to Panel question No. 20 (cit ing relevant portions of FIT contra cts). See also India's first written 
submission, paras. 107 and 109. 
316 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.163. We note that 
India has questioned whether the measures in Canada – Renewable Energy / Feed-in Tariff Program would 
necessarily require the use of the specific products at issue in this dispute, arguing that it was possible to meet the minimum domestic content levels by relying on othe r equipment and activities. In  particular, India focuses 
on the two specific items corresponding to "crystalline silicon solar photovoltaic cells" and "[s]olar photovoltaic modules (i.e. panels)" in the list of "designated activities" for which a qualifying percentage of domestic content could be achieved in projects using crystal line silicon technology. See India's response to Panel 
Question No. 20(a). In addition to these two items, the United States also includes other items pertaining to "generation equipment" generally (as opposed to "service ac tivities") that needed to be domestically sourced in 
order to meet the Minimum Required Domestic Content Level. See United States' second written submission, 
paras. 22-28; United States' opening statement at the second meeting of the Panel, para. 17. In our view, the parties' differing calculations and conc lusions in this respect derive from thei r disagreement as to the nature of 
 WT/DS456/R 
 
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  not draw any distinctions between the particular categories of equipment or goods specified under 
the measures in Canada – Renewable Energy / Feed-In Tariff Program .317  
7.126.  The Appellate Body likewise referred generally to "generation equipment" throughout its 
analysis in Canada – Renewable Energy / Feed-In Tariff Program , without specifying the precise 
nature or diversity of equipment that this comprised.318 The Appellate Body did not suggest that 
there was any legally relevant distinction between  such equipment and the other activities and 
services provided for under the measure in question.319 Thus, we note that Canada – Renewable 
Energy / Feed-In Tariff Program entailed discrimination against the same "generation equipment" 
that is at issue in the present dispute, namely solar cells and modules, and that neither the panel nor the Appellate Body attached any legal relevance in their reasoning to the fact that other  types 
of equipment were encompassed by the measure in question. 
7.127.  In our view, India's argument regarding the indispensable nature of "integral inputs" might 
also have been made with respect to generation equipment at issue in Canada – Renewable 
Energy / Feed-In Tariff Program , at least insofar as solar cells and modules were concerned.
320 We 
take particular note of the panel's observation on the relationship of the Minimum Required 
Domestic Content Level to "the very same equipment that is needed and used to produce the electricity that is allegedly procured", and its related conclusion that "there is very clearly a close 
relationship  between ... renewable energy generation equipment … and the product that is 
allegedly procured (electricity)".
321 The Appellate Body acknowledged that "a connection is 
articulated between the procurement of electric ity and the Minimum Required Domestic Content 
Levels regarding generation equipment".322 However, the Appellate Body considered that "this 
connection under municipal law is not dispositive of the issue, because Article III:8(a) imposes 
also other conditions"323, such as the competitive relationship between relevant products, which 
was the dispositive factor regarding the applicability of Article III:8(a) in Canada – Renewable 
Energy / Feed-In Tariff Program . 
                                                                                                                                               
different equipment in the generation  of solar power, particularly rega rding the alleged distinction between 
"integral" and "ancillary" equipment. 
317 For example, the panel stated elsewhere in its re ports that electricity gene rators (including those 
using solar PV technologies) were  compelled "to purchase and use certain types of renewable energy 
generation equipment  sourced in Ontario in the design and constr uction of their facilities". Panel Reports, 
Canada – Renewable Energy / Feed-In Tariff Program , para. 7.111. (emphasis added) 
318 In particular, the Appellate Body  stated that "the product that  is subject to the [measures] 
challenged by the complainants as discriminatory under Article III:4 of the GATT 1994 and the TRIMs 
Agreement is certain renewable energy  generation equipment ". Appellate Body Reports, Canada – Renewable 
Energy / Feed-In Tariff Program , para. 5.75. (emphasis added) 
319 See Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , paras. 5.75-5.85. 
320 We note the European Union's view that the requirements in Canada – Renewable Energy / Feed-in 
Tariff Program were imposed on "components [that] were equall y necessary to generate electricity". European 
Union's third-party submission, para. 37. In distingu ishing "integral" from "ancillary" equipment, India 
contrasts solar cells and modules with other equipment such as "inverters, electrical wiring, etc." and argues that "if we eliminate an inverter or  for that matter any other item, the solar cells and modules would continue 
to generate electricity". India's resp onse to Panel question No. 19; India's opening statement at the second 
meeting of the Panel, para. 6. Leaving aside whether so lar power could in fact be generated without inverters 
and electrical wiring, we note that  India has specified the following pr oducts to be among the "range of 
equipment" other than so lar cells and modules in Canada – Renewable Energy / Feed-in Tariff Program : 
"Silicon that has been used as input to solar photovoltaic cells" and "Silico n ingots and wafer" . India's response 
to Panel question No. 20(b). The exclusion of these produc ts appears to be an underlying assumption of India's 
contention that the requirements in Canada – Renewable Energy / Feed-in Tariff Program could be satisfied "by 
exclusively relying on the other equipment/designated acti vities (other than solar cells and modules)". India's 
response to Panel question No. 20(a). However, insofar as India contends th at such products are "ancillary", 
we consider this to be in tension with  its descriptions of solar energy gene ration and reflective of the difficulty 
of drawing a distinctio n between "integral" and "ancillary" inputs. See India's comments on the United States' 
response to Panel question No. 41-43, para. 11 (emphasis original):  
The most commonly used material used in solar cells and modules- silicon , is essentially a semi-
conducting material that produces the photovoltaic effect- which is basically photons of light  which excite 
electrons in the silicon  into a higher state of energy, thereby allo wing them to act as charge carriers for an 
electric current.  The photons of light come from sunlight; whereas the electrons- which are the carriers of 
electric current, come from the silicon in the solar cells and modules . 
321 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.127. (emphasis added) 
322 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.78. 
323 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.78. WT/DS456/R 
 
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  7.128.  We are not persuaded that the considerations advanced by India rise to anything more 
than the "close relationship" between generation equipment and electricity that the Appellate Body rejected as the relevant standard under Article III:8(a) in Canada – Renewable Energy / Feed-In 
Tariff Program . Nor are we persuaded that the inclusion of other equipment and services under the 
measure in that dispute was of any relevance to the Appellate Body's implicit finding that the solar 
cells and modules subject to the measure did not constitute "inputs and processes of production" 
for the purposes of Article III:8(a).
324 To whatever extent Article III:8(a) applies to "inputs" 
(however that term is defined) that are not in a competitive relationship with the product 
purchased by way of procurement, it is eviden t that the Appellate Body did not find such 
considerations germane to its evaluation of elec tricity and generation equipment that included 
solar cells and modules.325 We therefore reject India's argument under Article III:8(a) that solar 
cells and modules "cannot be treated as distinct from solar power"326 and that, "by purchasing 
electricity generated from such cells and modules, [India] is effectively procuring the cells and modules".
327 
7.129.  India additionally argues that "[t]he tariff for the power purchased under the PPAs 
incorporates within it the cost for the solar cells and modules", and that "India's purchase of electricity generated from solar cells and modules therefore constitutes an effective purchase  of 
the cells and modules themselves".
328 However, we are similarly unpersuaded that these 
considerations alter the reasoning and conclusions set out above. It is undisputed that it is SPDs, rather than the Government of India, that are re quired to purchase solar cells and modules under 
the DCR measures.
329 India has not explained how Canada – Renewable Energy / Feed-in Tariff 
Program would be distinguished in any relevant respect from the present case based on the fact 
that the payment made by SPDs is facilitated by the contracts entered into with governmental entities, or that the price of electricity incorporates that of solar cells and modules.
330 Indeed, 
India's argument as to "effective purchase" based on the incorporation of costs would seemingly 
conflict with its primary argument that "integral inputs", but not the other "ancillary equipment" whose costs also may be reflected in the electricity tariff, are "effectively procured" based on the 
special nature of those integral products.
331  
7.130.  India also raises concern about the potential consequences of a finding that "would mean 
that for a government to effectively procure solar cells and modules under Article III:8(a), it would need to: (a) purchase these products by itself and generate the electricity from it, or (b) purchase 
the products and provide it to SPDs for power generation".
332 According to India, "[s]uch an 
interpretation of Article III:8(a) would be an unnecessary intrusion into the nature and exercise of government actions relating to procurement of solar power, and this could not have been the 
intent of the drafters of Article III:8(a)."
333 Notwithstanding these arguments, India does not 
directly question the soundness of the Appellate Body's findings in Canada – Renewable Energy / 
                                               
324 The United States submits that a logical conseque nce of India's argument would be that, "had the 
Ontario Government limited its DCRs to just solar cells and modules, the [domestic content requirements] at 
issue in [ Canada – Renewable Energy / Feed-in Tariff Program ] would have been properly justified under 
Article III:8(a)". United States' co mments on India's response to Panel question No. 42, para. 8. 
325 The same considerations apply to whatever extent  that India bases its arguments on "processes of 
production" as opposed to, or in conjunction with, it s assertion that solar cells and modules are "integral 
inputs". For example, we note that  India states that "solar cells and modules can be characterized as 
constituting integral inputs involved in the process of production /generation of solar electricity, which is the 
product purchased by way of procurement". India's resp onse to Panel question No. 44, para. 14. (emphasis 
added) 
326 See, e.g. India's response to Panel question No. 19 and India's response to Panel question No. 41, 
para. 7; India's opening statement at the second meeting of the Panel, para. 8. We note that India has used various formulations in its characterization of solar ce lls and modules, for example referring to them as "so 
fundamental, integral and intrinsic to generation of electr icity, they cannot be treate d as distinct or separate 
from the purchase of electricity itself". In dia's second written submission, para. 23. 
327 India's opening statement at the first meeting of the Panel, para. 28. 
328 India's response to Panel question No. 41, para. 7. (emphasis added) 
329 See, e.g. United States' response to Panel question No. 41, para. 8. 
330 See India's response to Panel question No. 23(b); India's comments on the United States' response 
to Panel question No. 41-43, paras. 12-15. 
331 See United States' comments on India's respon se to Panel question No. 41, paras. 4-5.   
332 India's first written submission, para. 117. See also India's opening statement at the first meeting of 
the Panel, para. 29. 
333 India's first written submission, para. 118. See also India's opening statement at the first meeting of 
the Panel, para. 29. WT/DS456/R 
 
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  Feed-In Tariff Program , but rather asserts that "procurement" in Article III:8(a) should not be read 
to require "direct acquisition of the product".334  
7.131.  The United States and several third parties have raised concerns about the potential 
consequences of India's broader interpretation of Article III:8(a). The United States observes that 
the consequence of India's interpretation of Article III:8(a) would be to "permit India to purchase 
electricity but discriminate against imported solar cells and modules".335 The European Union 
raises the concern that India's argument of "effective procurement", without direct acquisition, 
could "allow discrimination by proxy" whereby "Membe rs could freely rely on contractors to breach 
their national treatment obligations for them, as long as the product they are procuring is somehow connected to a favoured domestic product".
336 Canada argues that Article III:8(a) should 
not be interpreted in a manner "that would allow discrimination through the production supply 
chain, including through measures governing process and production methods".337  
7.132.  We do not consider that the Appellate Body 's interpretation of Article III:8(a) necessarily 
leads to the result that, in order for the Government of India to act within the scope of this 
derogation, it would have to purchase domestically produced solar cells and modules by itself and 
generate the electricity itself, or purchase solar cells and modules and then provide them to SPDs for power generation. In our view, it is by no means self-evident that the above scenarios referred 
to by India, which would involve the "direct acquisition" of solar cells and modules by 
governmental agencies, would necessarily meet all of the requirements of Article III:8(a). Notably, to fall within the scope of Article III:8(a), products must be purchased "for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods for 
commercial sale".  
7.133.  In further support of its argument rega rding the direct acquisition of solar cells and 
modules, India cites the Appellate Body's statement that "if procurement was understood to refer 
simply to any acquisition, it would not add any meaning to Article III:8(a) in addition to what is 
already expressed by the word purchase".
338 However, we consider India's reliance on this 
statement to be misplaced. The Appellate Body noted that "the concepts of 'procurement' and 
'purchase' are not to be equated" – the former concept " refer[s] to the process pursuant to which 
a government acquires products", while the concept of "purchase" relates to "the type of transaction used to put into effect that procurement".
339 In our view, this conceptual distinction 
informs the cumulative and separate elements of Article III:8(a), and India has not explained how 
its argument comports with the Appellate Body's holistic interpretation of Article III:8(a) or with 
"the principle of effective treaty interpretation [tha t] requires us to give meaning to every term of 
the provision".340 Rather, we agree with the European Union that India's argument "reverses the 
logic of the Appellate Body" by subsuming the conc ept of "purchase" under a broader category of 
"procurement".341 Thus, we do not find support for India's broad interpretation of "procurement" in 
the Appellate Body's reasoning in Canada – Renewable Energy / Feed-In Tariff Program . 
7.134.  Moreover, we observe that India's consequentialist arguments do not establish that the 
measures at issue in this case are distinguishable in any relevant respect from those considered by 
the Appellate Body. We note that the Appellate Bo dy did state that the product acquired need not 
be "identical" to the foreign product subject to discrimination. At the same time, in the Appellate 
Body's assessment of similar factual circumstances, this flexibility was held to be constrained by 
the competitive relationship of products that are eith er like or directly competitive or substitutable, 
in accordance with the terms of Article III.342 With respect to other factual scenarios that may be 
distinguishable in relevant respects from those of the present dispute, we found that it is 
unnecessary in this case to decide whether Article III:8(a) could cover the procurement of inputs into products purchased by a government. Thus, our finding does not necessarily imply a 
requirement of "direct acquisition" of a product under all factual circumstances, as we do not 
                                               
334 See, e.g. India's first written submission, para. 120. 
335 United States' second written submission, para. 16. 
336 European Union's third-part y submission, paras. 38-40. 
337 Canada's third-party st atement, para. 8.   
338 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.59. 
339 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.59. 
340 See Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.57. 
341 See European Union's third-party submission, para. 40. 
342 See Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.63. WT/DS456/R 
 
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  decide upon the scope of Article III:8(a) beyond what is necessary to resolve the matter presented 
in this dispute. 
7.135.  Having considered the specific basis upon which India seeks to distinguish the facts and 
circumstances of the present dispute, we are not pe rsuaded that there is any basis to find that the 
DCR measures are distinguishable in any relevant respect from the measures examined by the 
Appellate Body in Canada – Renewable Energy / Feed-In Tariff Program . In light of the Appellate 
Body's legal interpretation of Article III:8(a) as ap plied to the governmental purchase of electricity 
and discrimination against foreign generation equipment, we find that the discrimination relating 
to solar cells and modules under the DCR measures is not covered by the derogation of Article III:8(a).  
7.2.6.3  Remaining elements under Article III:8(a) of the GATT 1994 
7.136.  We have found that the "product purchased" under the DCR measures is electricity and 
that the discrimination relating to solar cells and modules under the DCR measures is not covered by the derogation of Article III:8(a). This is a th reshold legal element that must be satisfied in 
order to find that a measure is covered by the derogation in Article III:8(a), and the DCR 
measures fail to meet this threshold. Accordingly, it is not necessary for us to conduct any further assessment of the remaining legal elements of Articl e III:8(a) to determine the applicability of this 
derogation. Were we to find that one or more of the remaining legal elements were not satisfied, 
this would merely serve to establish a separate and additional basis for the overall conclusion, 
which we have already reached, that the DCR measures are not covered by the derogation in Article III:8(a). Were we to find that the remaining elements are satisfied, this would still have no 
implications for the overall conclusion given that the threshold legal element under this provision is 
not satisfied. 
7.137.  Nevertheless, we recall that panels have the discretion to address arguments and make 
additional findings beyond those strictly necessary to resolve a particular claim or defence, 
including, for example, factual findings that could serve to assist the Appellate Body in completing the legal analysis should it disagree with legal interpretations developed by the panel.
343 In this 
case, our finding on the threshold legal element un der Article III:8(a) involves a question of law 
concerning the interpretation and scope of the derogation in Article III:8(a), in respect of which the parties hold opposing views. Furthermore, the issues raised under some of the remaining legal elements of Article III:8(a), and in particular whether the procurement and purchase of products 
under the DCR measures is "not with a view to commercial resale", involve extensive factual 
information of a technical nature relating to the purchase and sale of electricity under the National Solar Mission. If our findings on the threshold legal element under Article III:8(a) were modified or 
reversed on appeal, then the Appellate Body coul d be called upon to proceed to examine whether 
the DCR measures satisfy the remaining legal elements under Article III:8(a). In such circumstances, we consider it useful to proceed with a limited analysis and review of those issues, 
so that the Appellate Body may have the benefit of our factual findings related to these issues.  
7.138.  Therefore, our limited analysis and review is primarily factual, and will involve identifying 
the different issues that would need to be consid ered under remaining elements of Article III:8(a), 
the parties' positions on those different issues, an d our factual findings on some of those issues.  
7.2.6.3.1  Whether the DCR measures are "law s, regulations, or requirements governing 
procurement" 
7.139.  Article III:8(a) describes the types of measures falling within its ambit as "laws, 
regulations or requirements governing the procur ement" by governmental agencies of products 
purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods for commercial sale.  
7.140.  India submits that the instruments and documents governing the bidding process for the 
selection of SPDs under Phase I (Batch 1), Phase I (Batch 2) and Phase II (Batch 1) are a well-
                                               
343 See para. 7.76.  above. WT/DS456/R 
 
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  defined framework of requirements governing pr ocurement of solar power generated from solar 
cells and modules.344 
7.141.  According to the United States, the fact that the National Solar Mission is being carried out 
in phases "demonstrates the existence of a coherent program of related measures"345 that govern 
relevant bidding and procurement procedures.346 The United States further notes that India 
procures electricity under the National Solar Mission through PPAs.347 
7.142.  The Appellate Body explained that Arti cle III:8(a) "requires an articulated connection 
between the laws, regulations, or requirements an d the procurement, in the sense that the act of 
procurement is undertaken within a binding structure of laws, regulations, or requirements".348 We 
recall our earlier conclusion, under Article III:4 of the GATT 1994, that the DCR measures are properly viewed as "requirements" affecting the internal sale, purchase, or use of solar cells and 
modules in India. Thus, the question before us is whether there is "an articulated connection" 
between "requirements" of the DCR measures rela ting to solar cells and modules, on the one 
hand, and the "act of procurement" that is e ffectuated through the government's purchase of 
electricity, on the other.
349 
7.143.  The panel in Canada – Renewable Energy / Feed-In Tariff Program , although it was not 
examining the precise question later formulated by the Appellate Body, i.e. whether an "articulated 
connection" exists, made certain findings and observations that may be pertinent to answering the 
question. The panel considered that the domest ic content requirement imposed on generation 
equipment, i.e. the products discriminated against, could be seen as "governing" the procurement of electricity. In this regard, the panel stated th at the domestic content requirement in that case 
"compels the purchase and use of certain renewable energy generation equipment that is sourced 
[domestically] as a necessary prerequisite for the alleged procurement … to take place".
350 Thus, 
the procurement of electricity was considered to be "governed" by the requirements imposed on 
generation equipment.351 
7.144.  We note that it was in this context that the panel in Canada – Renewable Energy / Feed-In 
Tariff Program  observed that the electricity procured is produced by "the very same equipment" 
subject to the domestic content requirement in that dispute and that "there is very clearly a close 
relationship between the products that are affected by the relevant 'laws, regulations or requirements' (renewable energy generation equipm ent) and the product that is allegedly procured 
(electricity)".
352 The Appellate Body considered "this connection under municipal law" to be 
relevant to whether "the act of procurement is taken within a binding structure of laws, 
regulations, or requirements", and not pertinent to the specific question of whether the product 
purchased was in a competitive relationship with the product discriminated against, which we 
addressed above.353 Thus, the Appellate Body acknowledged that "a connection is articulated 
between the procurement of electricity and th e Minimum Required Domestic Content Levels 
regarding generation equipment" in the context of whether "the act of procurement is taken within 
a binding structure of laws, regulations, or requirements".354 
                                               
344 India's first written submission, para. 125. 
345 United States' response to India's re quest for a preliminary ruling, para. 30. 
346 See United States' first written submission, paras. 58-64. 
347 United States' first written submission, para. 76. 
348 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.58. 
349 As noted above, the Appellate Body distinguishe d the concepts of "procu rement" and "purchase" 
under Article III:8(a), finding that the latter is the transactional means through which the former process of 
governmental acquisition is effect uated. Applying these considerations to the particular facts of Canada – 
Renewable Energy / Feed-In Tariff Program , the Appellate Body found that the product purchased and procured 
by the government was electricity. See, e.g. Appellate Body Reports, Canada – Renewable Energy / Feed-In 
Tariff Program , paras. 5.75 (referring to "the product being pu rchased by a governmental  agency for purposes 
of Article III:8(a)" as electricity) and 5.79 (considering th at the "the product being proc ured is electricity"). By 
contrast, the "generation equipment" at issue in that dispute, like solar cells and modules in the present 
dispute, were neither purchased nor procured by th e government within the meaning of Article III:8(a). 
350 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.124. 
351 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , paras. 7.125-7.127. 
352 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.127. 
353 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.78. 
354 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.78. WT/DS456/R 
 
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  7.145.  In the present case, in assessing whether the DCR measures "govern the procurement" of 
electricity, we recall our conclusion under Article III:4 that the DCR measures operate to impose compulsory conditions for bidding eligibility and participation under each of the relevant Batches of the National Solar Mission, and further mandate the use of domestically manufactured solar cells 
and modules through enforceable contractual obligations of SPDs. Similar to the measures before 
the panel and Appellate Body in Canada – Renewable Energy / Feed-In Tariff Program , compliance 
with these conditions is a "necessary prerequisite" for the government's procurement of the 
electricity generated by SPDs using the same equipment to which the DCR measures apply. In this 
sense, we consider that "a connection is articulated between the procurement of electricity"
355 and 
the requirements imposed by the DCR measures on the use of solar cells and modules. We 
therefore conclude that the DCR measures are "l aws, regulations or requirements governing the 
procurement" of electricity. 
7.2.6.3.2  Whether the procurement under the DCR measures is "by governmental 
agencies" 
7.146.  Article III:8(a) applies to laws, regulations or requirements governing procurement "by 
governmental agencies".  
7.147.  India states that "[a] 'governmental agency' is an entity acting for or on behalf of 
government and performing governmental functi ons within the competences conferred on it".356 
India refers to NVVN and SECI as the designated governmental agencies "for entering into PPAs with SPDs for purchase of solar power and feeding the same into the grid".
357 India characterizes 
NVVN as "a wholly owned subsidiary of the state-owned NTPC" and SECI as "a not-for-profit 
government company, which is under the administrative control of MNRE".358 According to India, 
both NVVN and SECI "have been specifically desi gnated as the implementing agencies for Phase I 
(Batch [1] and Batch [2]) and Phase II (Batch [1]) respectively and are entities acting for and on 
behalf of Government of India".359 India further states that "[i]n their capacities as the 
implementing agencies, these entities are dischargi ng the governmental function of ensuring solar 
power that is partially generated from domestically manufactured solar cells and modules is 
procured to meet the overall objective of ensuring stable supply of energy and contributing 
towards energy security."360 
7.148.  The United States submits that "NVVN and SECI are acting for India when they implement 
the DCRs India has determined to require as pa rt of Phases I and II" of the National Solar 
Mission.361 The United States considers that "NVVN and SECI are governmental agencies within the 
meaning of" Article III:8(a) because "(1) the Government of India designated NVVN and SECI as 'implementing agencies' for the JNNSM Program and (2) NVVN and SECI are responsible for 
enforcing the DCRs, a typical governmental action".
362  
7.149.  The Appellate Body explained that " Article III:8(a) refers to entities acting for or on behalf 
o f  g o v e r n m e n t " ,  a n d  s t a t e d  t h a t  " t h e  m e a n i n g  o f  ' g o v e r n m e n t '  i s  d e r i v e d ,  i n  p a r t ,  f r o m  t h e  
functions that it performs and, in part, from the authority under which it performs those 
functions".363 The Appellate Body thus considered that "the question of whether an entity is a 
'governmental agency', in the sense of Articl e III:8(a), is determined by the competences 
conferred on the entity concerned and by whether that entity acts for or on behalf of 
government".364 
                                               
355 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.78. 
356 India's first written submission, para. 126. 
357 India's first written submission, para. 128. 
358 India's first written submission, paras. 129-130. 
359 India's first written submission, para. 131. 
360 India's first written submission, para. 131. 
361 United States' response to Pa nel question No. 2, para. 4. 
362 United States' response to Pa nel question No. 2, para. 6. 
363 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.60 (citing 
Appellate Body Reports, Canada – Dairy , para. 97; and US – Anti-Dumping and Countervailing Duties (China) , 
para. 290). 
364 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.60. WT/DS456/R 
 
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  7.150.   As explained above, NVVN and SECI were selected by the Ministry of New and Renewable 
Energy of India to act as the agencies respon sible for implementing the solar power project 
selection process and to serve as the government party in the individually executed PPAs. More specifically, NVVN was appointed by the central government as the "nodal agency" for Phase I 
(Batch 1 and Batch 2) of the National Solar Mission to purchase electricity from SPDs and to enter 
into Power Sale Agreements (PSAs) with Discoms.
365 In executing these transactions under Phase I 
(Batch 1 and Batch 2), NVVN was also designated as the recipient of an allocation of coal power 
from the Indian Ministry of Power "for bundling together solar power to be procured by NVVN" and 
selling the "bundled" power to Discoms, as discussed further below.366 Under Phase II (Batch 1), 
SECI was similarly designated as the governmental entity to purchase electricity from SPDs and to enter into "back-to-back" PSAs with Discoms.
367 The role of SECI in these transactions also 
involved administration of the "Viability Gap Funding" scheme under Phase II (Batch 1), whereby 
successful bidders received a capital grant (as discussed in the next section).368  
7.151.  Based on the above competences conferred on NVVN and SECI in their implementation of 
Phase I (Batch 1 and Batch 2) and Phase II (Batch  1) of the National Solar Mission, and in 
particular their purchase of electricity on behalf  of the government through individually executed 
PPAs, we conclude that the procurement of electricity is "by governmental agencies" within the 
meaning of Article III:8(a). 
7.2.6.3.3  Whether the procurement under th e DCR measures is of products purchased 
"for governmental purposes" 
7.152.  Article III:8(a) applies to laws, regulation s or requirements governing the procurement by 
governmental agencies of products purchased "for governmental purposes". 
7.153.  India submits that "the government procurement of solar power from solar cells and 
modules by the governmental agencies, NVVN and SECI, … is an act pursuant to the government 
purpose of promoting ecologically sustainable gr owth while addressing India's energy security 
challenge".369 India further submits that "the specific public function sought to be discharged is 
that of ensuring sustainable solar power development and enabling affordable access to solar 
power".370 India explains that the governmental purp ose and public function in this case is 
discernible "at two levels". First, India describes the bundling and VGF mechanisms (explained in more detail below) through which "[t]he clear and specific public function sought to be discharged is that of ensuring solar power development and enabling affordable access to solar power." 
Second, India refers to the use of the DCR measures "to ensure that the development of solar 
power is sustainable, and does not become exce ssively dependent on imports of solar cells and 
modules".
371 According to India, the governmental role "with regard to ensuring access to 
renewable solar electricity" is to be seen in the co ntext of "the overall challenges for India to cater 
                                               
365 See JNNSM Mission Document, (Exhibit IND-1), Section 6; Implementation of first phase of National 
Solar Mission – Issue of Presidential Directives – reg, Ministry of Power (22 December 2009), (Exhibit IND-13). 
366 Implementation of first phase of National Solar Mi ssion – Issue of Presidential Directives – reg, 
Ministry of Power (22 December 2009), (Exhibit IND-13). 
367 Phase II (Batch 1) Guidelines , (Exhibit USA-7), Section 2.8.1. The Phase II (Batch 1) Guidelines  
further state that "SECI will also hold responsibility for subsequent activities relate d to projects commissioning 
and performance monitoring & reporting on regular basis during the tenure of the projects". See also Phase II 
(Batch 1) Guidelines , (Exhibit USA-7), Section 2.2. 
368 See Approval for Implementation of a Scheme for Setting up of 750 MW of Grid-connected Solar PV 
Power projects under Batch-I of Phase- II of Jawaharlal Nehru National Sola r Mission with Viability Gap Funding 
support from National Clean Energy Fund , Ministry of New and Renewable Energy (15 October 2013), (Exhibit 
IND-12) (additionally specifying that "funds for provisio n of the VGF support … will be made available to MNRE 
from the National Clean Energy Fund (NCEF) operated by  the Ministry of Finance (Department of Expenditure) 
and [will] be disbursed to SECI based on phys ical and financial progre ss of the projects"). 
369 India's first written submission, para. 143. In resp onse to the Panel's questions, India submits that 
"'promoting ecologically sustainable growth' and 'addres sing [India's] energy security challenge' cannot be 
seen as distinct from each ot her, and that ecologically sustainable growth is fundamental to India's strategy to 
address energy security". India's re sponse to Panel question No. 21. 
370 India's response to Panel question No. 24(b). Al so see India's first written submission, para. 142. 
371 India's second written submission, para. 29. WT/DS456/R 
 
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  to the economic development requirements of it s population in an environmentally sustainable 
manner".372 
7.154.  The United States argues that India has not "sufficiently explained why promoting 
sustainable development, solar power development, or affordable access to solar power should be 
understood as 'public functions' as opposed to important 'aims or objectives' of the Indian 
government".373 This, according to the United States, is insufficient to establish a governmental 
purpose, as the Appellate Body's has explained th at governmental agencies by their very nature 
pursue governmental aims or objectives.374 The United States further argues that India does not 
regulate the downstream usage of solar power electricity, which "strongly suggests that India's procurement of electricity is not procurement for a 'governmental purpose' within the meaning of 
Article III:8(a)".
375  
7.155.  Japan considers that "[o]nly purchases objectively necessary to achieve a 'governmental 
purpose' should be considered as those ' for' governmental purposes", so that the exclusion for 
such purchases is not too "expansive".376 In the view of Japan, India "need not purchase solar 
power" in order "to ensure the availability of affordable solar power to consumers or to ensure that 
the development of solar power does not become  dependent on imports of cells and modules".377 
7.156.  The Appellate Body interpreted the term "governmental purposes" in Article III:8(a) as 
referring to "purchases of products directed at the government or purchased for the needs of the 
government in the discharge of its functions".378 The Appellate Body was of the view that the 
phrase "products purchased for governmental purposes" in Article III:8(a) "refers to what is consumed by the government or what is provided by government to recipients in the discharge of 
its public functions", with the scope of such functions determined on a case by case basis.
379 
Further, the Appellate Body read the word "for " relating the term "products purchased" to 
"governmental purposes" to require that there be "a rational relationship between the [purchased] 
product and the governmental function being discharged".380 Importantly, the Appellate Body 
explained that "the additional reference to 'governm ental' in relation to 'purposes' must go beyond 
simply requiring some government al aim or objective with respect to purchases by governmental 
agencies", given that "governmental agencies by their very nature pursue governmental aims or 
objectives".381 In summarizing its assessment, the Appellate Body framed the specific question 
under this element as whether products are "purchased for the use of government, consumed by government, or provided by government to recipi ents in the discharge of its public functions".
382 
7.157.  We note that the "governmental purpose" and "public functions" advanced by India have 
multiple interrelated aspects. For instance, a primary governmental purpose or public function of the DCR measures alleged by India is "ensuring availability of affordable solar power to 
consumers", and that "in the process, it also seeks to ensure that part of the procurement of solar 
                                               
372 India's response to Panel question No. 24(b). 
373 United States' answer to Panel question No. 46, pa ra. 20; United States' comments to India's answer 
to Panel question No. 47, para. 21. 
374 United States' answer to Panel question No. 46, paras. 20-21 (citing A ppellate Body Reports, Canada 
– Renewable Energy / Feed-in Tariff Program , para. 5.66). 
375 United States' answer to Panel question No. 46, para . 24. India has argued that this is not a relevant 
test for the purposes of the present analysis. See Indi a's comment to the United States' response to Panel 
question 46, paras. 21-23. 
376 Japan's third-party submission, pa ra. 4. Japan explains its underlying concern that a "governmental 
purpose" could be easily assigned "by requiring a product to be distribute d to consumers through a 
governmental agency allegedly for the purpose of ensuring the stable suppl y of such product or the supply of 
such product at an affordable price or of promoting ce rtain domestic industry". Se e also Japan's response to 
Panel question No. 2 to the third parties, para. 8. 
377 Japan's response to Panel question No. 2 to the third parties, para. 9. 
378 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.67. 
379 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.68. 
380 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.68. 
381 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.66. 
382 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.74; see also 
para. 5.68 (stating that "the phrase 'products purchased for governmental purposes' in  Article III:8(a) refers to 
what is consumed by governme nt or what is provided by government to recipients in the discharge of its public 
functions"). WT/DS456/R 
 
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  power is from domestically manufactured cells and modules".383 The various dimensions of the 
governmental purpose and public function at issue are evident in India's reference to "the public 
function to ensure that solar energy generation is achieved in an ecologically sustainably manner that is not excessively dependent on imports and can effectively contribute to … addressing the 
challenge of energy security".
384 India appears to present its governmental purposes and public 
functions as being inseparable and mutually dependent.385 For its part, the United States "does not 
understand the existence of other non-governmental purposes to ipso facto  preclude the 
application of Article III:8(a)", if the procurement at issue is "directed towards or intended to carry 
out at least one legitimate governmental purpose".386 However, in the view of the United States, 
"where there are significant non-governmental motivations behind the procurement at issue, this might indicate that the procurement is not, in fact, directed towards the 'governmental purpose' 
articulated by the Member invoking Article III:8(a)".
387 
7.158.  We consider the arguments raised by the parties in light of the Appellate Body's 
understanding that "for governmental purposes" ca n refer to two situations, namely "to what is 
consumed by the government or what is provided by government to recipients in the discharge of 
its public functions".388  
7.159.  With respect to the first scenario, which focuses on what is consumed by the government, 
India states that "downstream 'distribution utilities' can have any type of end use consumers 
including the central and state government and public agencies"389, and that "NVVN and SECI sell 
the electricity to Discoms that feed it into the grid. To the extent that the supply from the grid caters to the requirements of the government (government offices, schools, hospitals, roads, 
railways, etc.), the government of India will be a consumer of the products it purchases."
390 To the 
extent that the transmission of electricity to government consumers is merely incidental and/or unintended, the United States questions whether this would meet the standard of a "purpose" 
understood as an "intention" or "aim".
391 In our view, it is not clear that India has argued the 
potential consumption of electricity by government al entities as an independent grounds to find 
that procurement is "for governmental purposes" under the DCR measures. Instead, it appears 
that the governmental purpose and public func tion primarily contended by India concern the 
"supply of reliable and affordable electricity to recipients across India", which incidentally includes governmental entities.
392 Without deciding whether such incidental consumption by the 
government of purchased goods may be "for governmental purposes" within the meaning of 
Article III:8(a), we consider that India's arguments relate more closely to providing solar power to 
a broader range of recipients in the discharge of public functions. 
7.160.  The specific "public functions" cited by India concern ensuring affordable access to solar 
power, and ensuring some level of domestic production for ecologically sustainable growth and 
energy security. With regard to "what is provided by government to recipients in the discharge of 
its public functions", the Appellate Body has stated  that "[t]he scope of these functions is to be 
determined on a case by case basis".393 The Appellate Body also referred to an example in which 
"a public hospital purchases pharmaceuticals and provides them to patients".394 One relevant 
limitation noted by the Appellate Body is that the finding of a governmental purpose "must go 
beyond simply requiring some governmental aim or objective with respect to purchases by 
governmental agencies".395 
                                               
383 India's second written submission, para. 28. 
384 India's second written submission , para. 30, first bullet point. 
385 For example, India submits that "'promoting ecologically sustainabl e growth' and 'addressing energy 
security challenge' cannot be seen as distinct from ea ch other, and that ecologically sustainable growth is 
fundamental to India's strategy to address energy se curity". India's response to Panel question No. 21. 
386 United States' answer to Panel question No. 47, para. 25. 
387 United States' comments to India's answ er to Panel question No. 47, para. 20. 
388 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.68. 
389 India's first written submission, p. 36, table row 4. 
390 India's response to Panel question No. 24(a). See also India's response to Panel question No. 45, 
para. 16. 
391 United States' answer to Panel question No. 45, paras. 17-18. 
392 See India's response to Panel question No. 45, para. 16. 
393 Appellate Body Report, Canada – Renewable Energy/Feed-in Tariff Program , para. 5.68. 
394 Appellate Body Report, Canada – Renewable Energy/Feed-in Tariff Program , fn 514. 
395 Appellate Body Report, Canada – Renewable Energy/Feed-in Tariff Program , para. 5.66. WT/DS456/R 
 
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  7.161.  We note overlaps between the government al purposes and public functions alleged by 
India under Article III:8(a) and the wider policy objectives it has described in relation to the DCR measures. The additional requirement under Article III:8(a), as explained by the Appellate Body, is that "the products purchased must be intended to be directed at the government or be used for 
governmental purposes" and that, consequently, "t here be a rational relationship between the 
product and the governmental function being discharged".
396 Recalling our finding that the 
" p r o d u c t  p u r c h a s e d "  b y  t h e  g o v e r n m e n t  i n  t h i s  c a s e  i s  e l e c t r i c i t y ,  w e  n o t e  t h a t  I n d i a  r e f e r s  t o  
national legislation and initiatives regarding the importance of electricity in the context of its 
"crippling energy deficit".397 India also cites reports of the United Nations Economic and Social 
Commission for Asia and the Pacific as well as the United Nations Development Programme regarding the role of the state in ensuring access to energy.
398 Furthermore, as discussed below in 
the context of whether the procurement and purchase of products under the DCR measures is not 
with a view to "commercial resale", India pres ents various considerations about the framework 
through which electricity is supplied and the role of regulatory control in its transmission to 
consumers.  
7.162.  As explained above399, our analysis of this element of Article III:8(a) is confined to 
identifying the different issues that would need to be considered under this element and the 
parties' positions on those issues. Therefore, we do not decide on the legal questions of whether 
ensuring the affordable access of a product, or  the other governmental purposes and functions 
identified by India400, can constitute a "governmental purpose" or "public function" within the 
meaning of Article III:8(a). Nor do we express a view on whether this may turn on the particular 
product(s) in question and the specific context in which the government is purchasing and 
providing such product(s) to other recipients.401 
7.2.6.3.4  Whether the procurement and purc hase of products under the DCR measures 
is "not with a view to commercial resale" 
7.163.  Article III:8(a) applies to laws, regulation s or requirements governing the procurement by 
governmental agencies of products purchased for governmental purposes "and not with a view to 
commercial resale or with a view to use in the production of goods for commercial sale".  
7.164.  According to India, "the Appellate Body has emphasized that whether a transaction 
constitutes a commercial resale must be assessed having regard to the entire transaction".402 In 
India's view, the relevant transaction in this case, which is not "with a view to commercial resale", 
is "one comprehensive transaction that begins with the process of solar power generation by the 
SPD, and ending with the sale of power to th e Discoms and by the Discoms to the consumers".403 
India argues that in order to "minimize the impact of the price of solar power on the electricity 
tariff"404, NVVN and SECI serve as intermediaries between SPDs, from whom solar power is 
purchased, and Discoms, to whom it is sold , through the bundling scheme implemented under 
Phase I (Batch 1 and Batch 2) and the viability  gap funding (VGF) capital grant scheme under 
Phase II (Batch 1). The purpose of these schemes "w as to ensure that the price of sale of solar 
power to Discoms was at a level that would enable distribution to consumers at an affordable price".
405 In other words, according to India, the bundling and VGF schemes "essentially ensured 
                                               
396 Appellate Body Report, Canada – Renewable Energy/Feed-in Tariff Program , para. 5.68. 
397 India's first written submission, paras. 136-137. 
398 India's first written submission, paras. 138-139. 
399 See para. 7.138.  above. 
400 For instance, India submits that public functions ar e "by definition multidimensional in nature", and 
argues that "[t]he public functions to ensure that the development of solar power is  sustainable, reliable and 
stable, and does not become excess ively dependent on imports of so lar cells and modules, requires 
development of a domestic manufacturing base for sola r cells and modules". See India's response to Panel 
question No. 47, paras. 17-18. 
401 For example, India argues that "[ t]he government of India's role wi th regard to ensuring access to 
renewable solar electricity is a natural corollary of the overall challenges for India to cater to the economic development requirements of its population in an environmentally sustainable manner". India's response to Panel question No. 24(b). 
402 India's response to Panel question No. 48, pa ra. 21 (emphasis omitted) (citing Appellate Body 
Report, Canada – Renewable Energy / Canada – Feed-in Tariff Programme , para 5.71). 
403 India's response to Panel question No. 48, para. 19. 
404 India's response to Panel question No. 48, para. 23. 
405 India's second written submission, para. 32; India's first written submission, para. 160. WT/DS456/R 
 
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  that the sale of solar power is not linked to the costs of generation of such power, since that would 
have essentially made it unviable for Discoms to purchase it, or for consumers to pay for the same".
406 India further argues that neither NVVN nor SECI "has profit as a motive in entering into 
the relevant transactions under Phase I and Phase II. They had neither any 'view to commercial 
resale' nor any possibility of engaging in commercial resale."407 
7.165.  The United States submits that "any and all resale transactions envisaged by the 
government are relevant for assessing 'commercial resale' within the meaning of Article 
III:8(a)".408 Therefore, the United States argues, "the relevant transactions include both (1) 
NVVN/SECI's resale of electricity to Discoms; and (2) the Discoms further downstream resale of 
electricity to commercial and retail customers".409 This is the case because "the transaction occurs 
with the knowledge and intent that the Discoms will resell the electricity to downstream 
commercial and retail consumers".410 The United States clarifies that it "does not argue that the 
sale of electricity is oriented at generating a profit for NVVN or SECI".411 Howe ve r, this  i s  "not 
determinative of whether their procurement of electricity is taken with a view to commercial 
resale"412 as, in the United States' view, "the bundling and VGF are designed to make the purchase 
and resale of electricity viable as a commercial proposition  for Discoms", which indicates that the 
procurement of electricity by NVVN and SECI "is clearly undertaken 'with a view to commercial 
resale' – that is, with the knowledge and intent that the electricity will compete on the market and 
therefore need to be competitively-priced to ensure that it is marketable to consumers".413  
7.166.  The Appellate Body noted that "the words 'w ith a view to commercial resale' relate back to 
the 'products purchased'"414, and thus "the product not to be 'resold' on a commercial basis is the 
product 'purchased for governmental purposes'".415 In this case, we have found that the product 
procured and purchased by governmental agencies under the DCR measures is the electricity that is generated by SPDs. The focus of the parties' argu ments under this element is also on electricity, 
and particularly on whether the resale of the electricity purchased by NVVN and SECI is 
commercially resold, rather than whether that electricity is purchased "with a view to use in the production of goods for commercial sale", as also provided under Article III:8(a). We accordingly 
confine our assessment to whether electricity generated by SPDs is a product purchased by 
governmental agencies "with a view to commercial resale".  
7.167.  The Appellate Body considered that "'commercial resale' is a resale of a product at arm's 
length between a willing seller and a willing buyer".
416 The Appellate Body further stated that 
"whether a transaction constitutes a 'commercial resale' must be assessed having regard to the 
entire transaction", and that "the assessment must look at the transaction from the seller's perspective and at whether the transaction is oriented at generating a profit for the seller. We see 
profit-orientation generally as an indication that a resale is at arm's length … [and] that the seller 
is acting in a self-interested manner".
417 T h e  A p p e l l a t e  B o d y  r e c o g n i z e d  t h a t  " t h e r e  a r e  
circumstances where a seller enters into a transaction out of his or her own interest without 
making a profit", and in such cases "it may be useful to look at the seller's long term strategy". 
According to the Appellate Body, "[t]his is because loss-making sales could not be sustained 
                                               
406 India's second written submission, paras. 34 and 44; India's response to Panel question No. 48, 
para. 25. 
407 India's response to Panel question No. 48, para . 28; India's response to Panel question No. 49, 
para. 33; India's response to Pa nel question No. 52, para. 40. 
408 United States' response to  Panel question No. 48, para. 27. (emphasis omitted) 
409 United States' response to Pa nel question No. 48, para. 29 (emphasis original); United States' 
comment to India's response to Panel question No. 48, paras. 22-23. 
410 United States' response to Pa nel question No. 48, para. 28. 
411 United States' response to Pa nel question No. 50, para. 32; United States' comment to India's 
response to Panel question No. 48, para. 24. Similarly,  "[e]ven if the trading margin imposed on NVVN/SECI 
does not allow for recovery of costs or profits, this wo uld not refute a finding that  NVVN/SECI's procurement is 
taken with a view to commercial resale." United States ' comment to India's response to Panel question No. 52, 
para. 29. 
412 United States' comments on India's resp onse to Panel question No. 49, para. 27. 
413 United States' response to Pane l question No. 51, para. 36; United States' comments on India's 
response to Panel question No. 51(c), para. 32. 
414 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.69. 
415 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.70. 
416 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.70. 
417 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.71. WT/DS456/R 
 
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  indefinitely and a rational seller would be expected  to be profit-oriented in the long term, though 
we accept that strategies can vary widely and t hus do not see this as applying axiomatically".418 In 
addition to the seller's perspective, the Appellate Body stated that the "transaction must also be 
assessed from the perspective of the buyer", and that "[a] commercial resale would be one in 
which the buyer seeks to maximize his or her own interest".419 Therefore, "[i]t is an assessment of 
the relationship between the seller and the buyer in the transaction in question that allows a 
judgement to be made whether a transaction is made at arm's length".420 
7.168.  Although the parties have opposing views on  the applicability of Article III:8(a) in light of 
the Appellate Body's interpretation in Canada – Renewable Energy / Feed-In Tariff Program , the 
facts that are potentially relevant to the analysis of whether electricity is purchased with a view to commercial resale are largely undisputed. In particular, the United States clarifies that it "does not 
dispute any point of India's factual description of the bundling or VGF schemes. Nor does the 
United States dispute that the bundling and VGF schemes are geared towards enabling the sale of solar power to Discoms (and eventually consumers) at a lower cost."
421 We recall in this 
connection that one of India's central contentions in the context of commercial resale is that " but 
for the bundling scheme and the VGF scheme being bu ilt into the process of procurement of solar 
power (through the involvement of NVVN and SECI respectively), the rate at which the solar power 
would have been purchased by Discoms from SPDs and sold by Discoms to consumers would have 
been significantly higher."422 We therefore set out pertinent undisputed facts in relation to the 
bundling and VGF schemes administered through NVVN and SECI, respectively. 
7.169.  Under Phase I (Batch 1 and Batch 2), India employs a mechanism of "bundling" relatively 
expensive solar power with power from the "unallocated quota of the power from NTPC coal based 
stations, which is relatively cheaper".423 This "bundling" scheme requires that, "for each MW of 
installed capacity of solar power for which a PPA is signed by NVVN, the Ministry of Power shall 
allocate to NVVN an equivalent amount of MW capacity from the unallocated quota of NTPC coal 
based stations and NVVN will supply this 'bundled' power to the Discoms".424 The rate paid by 
NVVN for solar power is based on a "reverse bidding" process according to which SPDs enter 
competing bids against the "solar power tariff" determined under the regulatory framework 
described below.425 Under Phase II (Batch 1), the VGF scheme entails a capital grant made 
available to SPDs through SECI that is linked to the capital costs of the SPD, with an upper limit of 30% of the project cost or Rs. 2.5 Cr/MW/project (i.e. 25 million Rupees per MW for each project), 
whichever is lower.
426 The amount of the VGF capital grant is likewise established through a 
"reverse bidding" process wherein the selection crit eria are based on the amount of VGF quoted by 
prospective bidders.427 
                                               
418 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.71. 
419 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.71. 
420 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.71. 
421 United States' response to Pa nel question No. 51, para. 33. 
422 India's second written submission, para. 44. (empha sis original) See also India's response to Panel 
question No. 53(a), paras. 41-44; India's re sponse to Panel question No. 55, para. 57. 
423 See India's second written submission, para. 36 (citing Phase I (Batch 1) Guidelines , (Exhibit 
USA-5), para. 1.1). India explains th at "power from Central Generating St ations to benefici ary States/Union 
Territories is allocated in accordance with formula for allocation of power as specified by the Government. This 
is made to the States/ Union Territori es in two parts, namely a firm allo cation of 85% of the power, and the 
balance 15% of the unallocated power for allocation by the Government for me eting the urgent/overall 
requirement". India's second written submission, para. 37 (citing Formula for Allocation of Power from Central 
Generating Stations to States , Press Information Bureau, Ministry  of Power, Government of India 
(19 March 2013), (Exhibit IND-44)). 
424 See India's second written submission, para. 36 (citing Implementation of first phase of National 
Solar Mission – Issue of Presidential Directives – reg, Ministry of Power (22 December 2009), (Exhibit 
IND-13)). India further states that the "energy output from 1 MW solar po wer is approximately one-fourth of 
that from 1 MW thermal power. The bundling of the two sources of power thereby enables creation of volume 
of energy whose combined costs would be subs tantially lowered because of the bundling". 
425 See, e.g. India's first wr itten submission, p. 36, row 7 (citing Phase I (Batch 1) Guidelines , (Exhibit 
USA-5), p. 2; and Phase I (Batch 2) Guidelines , (Exhibit USA-6), p. 2). 
426 India's first written submission, para. 159; see also Phase II (Batch 1) Request for Selection  
document, (Exhibit USA-12), p. 6; India's response to  Panel question No. 48, paras. 23-25. See also United 
States' first written submission, para. 37. 
427 India's second written submission, para. 41. WT/DS456/R 
 
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  7.170.  In the context of both Phase I (Batch 1 and Batch 2) and Phase II (Batch 1), India refers 
to the role of the Central Electricity Regulatory Commission (CERC), which is the central governmental entity "charged with the responsibility to specify terms and conditions for determination of tariff[s] for electricity", as well as the similar regulatory function of State 
Electricity Regulatory Commissions (SERCs) at the state level.
428 India describes the regulatory 
framework through which certain prices are determ ined by CERC and SERCs, as the case may be, 
which covers: the determination of "generic levellized" electricity prices on an annual basis from 
renewable energy sources, including solar power projects429; the price at which NVVN obtains coal 
power to be bundled with solar power in Phase I430; and "[t]he price at which electricity can be 
sold by Discoms".431 
7.171.  Based on the information provided by Indi a, and not contested by the United States, the 
following table provides a breakdown of the va rious prices charged and paid by the Indian 
governmental agencies in the purchase and sale of electricity under Phase I (Batch 1 and Batch 2) and Phase II (Batch 1).  
 Average price paid 
by NVVN/SECI to 
SPDs Price of 
unallocated coal 
power paid by 
NVVN 432 Price of sale 
from 
NVVN/SECI to 
Discoms CERC determined 
tariff for solar 
power 
Phase I (Batch 1) Rs. 12.12/kWh433  Rs. 2.59/kWh to 
Rs. 3.67/kWh Rs. 4.14/kWh to 
Rs. 4.81/kWh434 Rs. 17.91/kWh435 
Phase I (Batch 2) Rs. 8.77/kWh436  Rs. 2.59/kWh to Rs. 
3.67/kWh Rs. 15.39/kWh437 
Phase II (Batch 1) Rs. 5.45/kWh  N/A Rs. 5.50/kWh  Rs. 8.75/kWh438 
 
7.172.  India points to the "generic levellized" price of solar power in the right-hand column as the 
"CERC approved benchmark tariffs", which represent the price "at which solar power could be 
purchased during the relevant time periods covered by" Phase I (Batch 1 and Batch 2) and 
Phase II (Batch 1).439 Accordingly, India emphasizes th at the bundling and VGF mechanisms 
"enabled the sale price of solar power to be significantly lower than these benchmark tariffs".440 
For its part, the United States acknowledges that  the bundling and VGF schemes enable the sale of 
                                               
428 India's response to Panel question No. 53(a), para. 41. India explains that CERC regulates, inter alia : 
(a) the tariff of generating companies owned or controlled by the Central Government; (b) tariff for inter-state 
transmission of electricity; and (c) the trading margin  in inter-state trading in electricity". India further 
explains that SERCs regulate, inter alia : (a) determination of tariff for generation, supply, transmission and 
wheeling of electricity within the State; (b) price at which electricity shall be produced/purchased for distribution within the State. India's first written submission, para. 148. 
429 India's response to Panel ques tion No. 53(a), para. 42 (citing The Central Electricity Regulatory 
Commission (Terms and Conditions for Tariff Determination from Renewabl e Energy Sources) Regulations, 
2009, Central Electricity Regulatory Commission, (Exhibit IND-52)). 
430 India's second written submission, para. 40. 
431 India's first written submission, para. 151. India notes that this price may vary according to factors 
such as whether the supply is to re sidential or industrial entities, urba n or rural areas, and the units of 
electricity consumed. See also India's response to Panel question No. 53(b) and (c). 
432 See NVVN Letter to Department of Commerce (5 March 2015), (Exhibit IND-45). 
433 Range from Rs. 10.95/kWh to Rs. 12.76/kWh 
434 See NVVN Letter to Department of Commerce (5 March 2015), (Exhibit IND-45). But see also India's 
response to Panel question No. 22: "The weighted average rate for bund led power which ranges from INR 4.34 
to INR 4.60 per kWh, which is the price at which the b undled power procured by NVVN is sold to Discoms". 
435 See Order in Petition No. 53/2010, determining tariff for 2010-2011, Central Electricity Regulatory 
Commission (26 April 2010), (Exhibit IND-38). 
436 Range from Rs. 7.49/ kWh to Rs. 9.44/kWh 
437 See Order in Petition No. 256/2010, determining tariff for 2011-2012, Central Electricity Regulatory 
Commission, (Exhibit IND-39). 
438 See Order in Petition No. Petition No. 243/SM /2012 (Suo-Motu), Central Electricity Regulatory 
Commission (28 February 2013), (Exhibit IND-40). 
439 India's Response to Panel question No. 53(a), para. 43. 
440 India's Response to Panel question No. 53(a), para. 44. WT/DS456/R 
 
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  solar power to Discoms (and eventually consumers) at a lower cost than these "benchmark 
tariffs"441, which is confirmed in comparing the figures in the two adjacent right-hand columns.  
7.173.  We note that the above table reflects certain differences in the cost reduction implemented 
through the bundling and VGF mechanisms under Phase I (Batch 1 and Batch 2) and Phase II 
(Batch 1), respectively. In particular, the information for Phase I (Batch 1 and Batch 2) reflects 
average prices paid by NVVN for solar power ge nerated by SPDs. These prices are established 
through the reverse bidding process, wherein SPDs offering the largest discount on the 
"benchmark" CERC determined rate are selected.442 This solar power purchased by NVVN is then 
"bundled" with coal power allocated to NVVN at the prices set forth in the next column, thereby facilitating the sale from NVVN to Discoms at a further reduced price. Wi th respect to Phase II 
(Batch 1), by contrast, the price at which electricit y is purchased by SECI is fixed by the relevant 
Guidelines  document at the rate of Rs. 5.45/kWh
443, and the Request for Selection  document fixes 
the selling price of that electricity to Discoms at the rate of Rs. 5.50/kWh.444  
7.174.  India explains that "both NVVN and SECI include a small amount as 'trading margin' in the 
price at which they sell to Discoms", which is "a charge that compensates the trader in relation to 
risks inherent in the trading business such as default risk, late payment risk, contract dishonor risk, and inflationary risk".
445 This "trading margin" has been fixed by the MNRE at Rs. 0.07/kWh 
under Phase I (Batch 1 and Batch 2), and at Rs. 0.05/kWh under Phase II (Batch 1).446 We note 
that the trading margin under Phase II (Batch 1) accounts for the exact difference in the price at 
which SECI purchases electricity from SPDs and the price at which it sells electricity to Discoms. Conversely, the trading margin under Phase I (Batch 1 and Batch 2) is not reflected so uniformly 
in the series of transactions through which bundling is implemented, in which there are variable 
prices arising from the processes of SPD selection and allocation of coal power to NVVN.
447  
7.175.  With this factual background, we turn to the parties' disagreement on whether electricity is 
purchased by governmental agencies under the Nati onal Solar Mission "with a view to commercial 
resale".448  
7.176.  A fundamental point of contention between the parties relates to the scope of the relevant 
transaction for the purposes of assessing commer cial resale. We recall the Appellate Body's 
explanation that "'commercial resale' must be assessed having regard to the entire transaction", which involves an assessment of "the transaction from the seller's perspective" as well as "from the perspective of the buyer".
449 India argues that the relevant transaction in this respect is "one 
comprehensive transaction that begins with the process of solar power generation by the SPD, and 
ending with the sale of power to the Discoms and by the Discoms to the consumers".450 India 
further submits that, in the context of the pres ent dispute, "NVVN/SECI acting as government 
                                               
441 See United States' response to Panel question No. 51, para. 33. 
442 See India's first written submission, p. 36, row 7;  United States' first written submission, para. 36. 
443 Phase II (Batch 1) Guidelines , (Exhibit USA-7), Section 1.3(1). See also Phase II (Batch 1) Request 
for Selection  document, (Exhibit USA-12), Section 1.3.2; and Phase II (Batch 1) model PPA, (Exhibit USA-19), 
p. 4, clause I. 
444 Phase II (Batch 1) Request for Selection  document, (Exhibit USA-12), Section 3.11(iii). 
445 India's second written submission, para. 42 (citing Statement of Reasons, The Central Electricity 
Regulatory Commission (Fixation of Trading Margin) Regulations, as available at 2010, (Exhibit IND-46)). 
446 India's second written submission, para. 43 (citing Sale of Solar Power to State Utilities/Discoms 
under Phase I of JNNSM- Trading Margin of NVVN, Ministry of New and Renewable Energy (7 June 2013), 
(Exhibit IND-47); Phase II (Batch 1) Guidelines , (Exhibit USA-7), Section 2.8.1; Draft Standard Power Sale 
Agreement for Sale of Solar Power on Long Term Basis , Solar Energy Corporation of India  (23 July 2014), 
(Exhibit USA-10), Section 5.1.1). 
447 In this context, we observe from the above table th at the cost reduction occurs  at different  stages in 
the transaction under the bundling and VGF schemes. The cost reduction achieved under Phase I (Batch 1 and 
Batch 2) occurs in sequential steps through the comb ination of "reverse bidding" by SPDs and bundling 
cheaper coal power before the sale of electricity to Di scoms. Under Phase II (Batch 1), the VGF capital grant is 
a pre-established condition that enables SPDs to sell elec tricity in the first instance to SECI at a reduced rate, 
to which the trading margin is uniformly added in the subsequent sale of electricity to Discoms. 
448 As noted, "the word 'resale' refers to the term 'products purchased'" and, accordingly, "the product 
not to be 'resold' on a commercial basis is the produc t 'purchased for governmental  purposes". Appellate Body 
Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.70. 
449 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.71. 
450 India's response to Panel question No. 48, para. 19. WT/DS456/R 
 
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  agents for bundling and VGF are the sellers " and that "[t]he buyers are both the Discoms and 
ultimately the consumers who purchase the electricity from the Discoms".451 By contrast, the 
United States argues that "the relevant transactions include both (1) NVVN/SECI's resale of 
electricity to Discoms; and (2) the Discoms further downstream resale of electricity to commercial 
and retail customers".452 Based on this bifurcation of potentially relevant transactions, the United 
States argues that the relevant "buyers" are "(1) the Discoms that purchase the electricity from NVVN/SECI and (2) the downstream household and commercial consumers that purchase the 
electricity from the Discoms"; the corresponding "sellers" relevant to Article III:8(a) are 
"(1) NVVN/SECI, with respect to their resale of electricity to the Discoms and (2) the Discoms, with respect to their further resale of electricity to downstream household and commercial consumers".
453 
7.177.   We note that, in its interpretation of "commercial resale" under Article III:8(a), the 
Appellate Body used the terms "transaction", "buy er", and "seller" in the singular tense after 
having narrowed the focus of the relevant "resale" to that of the "product purchased for 
governmental purposes".454 Although the Appellate Body did no t apply these considerations to the 
specific facts of Canada – Renewable Energy / Feed-In Tariff Program , we are of the view that this 
could be read to support the understanding that "commercial resale" under Article III:8(a) is 
concerned with the immediate  resale by the governmental entity that purchases the product in 
question. India seems to adopt this understanding, notwithstanding its reference to a single "comprehensive transaction", in stating that "Article III:8(a) does not envisage any seller other than the Government which has purchased the product in the first place", and that "[t]he 
reference to 'commercial resale' is therefore with regard to sale by the governmental agency that 
has engaged in the 'purchase for governmental purposes'".
455 The United States disagrees with 
this interpretation, and submits that Article III:8(a) relates to whether the purchase is undertaken 
"with a view to  commercial resale". On this basis, the United States argues that the sale of 
electricity by NVVN/SECI "occurs with the knowledge and intent that the Discoms will resell the electricity to downstream commercial and retail consumers", and that the focus of the analysis 
thus comprises all downstream resale transactions.
456 
7.178.  An issue underlying the parties' disagreement is therefore whether "commercial resale" 
under Article III:8(a) is limited to the government's immediate resale of the product purchased, or if instead it may be understood as extending to resale transactions further downstream. The 
Appellate Body did not specifically address this question in Canada – Renewable Energy / Feed-In 
Tariff Program , nor did it analyse the implications of the language "with a view to" in 
Article III:8(a) upon which the United States bases its argument that the commercial character of 
downstream transactions might be imputed to a governmental entity with "knowledge and intent" 
of those transactions. However, we note that the assessment of the panel in Canada – Renewable 
Energy / Feed-In Tariff Program , which was ultimately rendered moot by the Appellate Body's 
finding that the "product purchased" in that case was electricity and that the discrimination 
relating to generation equipment was not covere d by the derogation of Article III:8(a) of the 
GATT 1994, focused on the profit-making and down stream competition of entities all the way 
through to final retail sale.
457 
                                               
451 India's response to Panel question No. 48, para. 27. 
452 United States' response to Pa nel question No. 48, para. 29. 
453 United States' response to Panel question No. 48, para. 30. The Unit ed States also contests India's 
characterization of a single "comprehensi ve transaction", stating that "[t]here  are, in fact, th ree transactions:  
(1) NVVN and SECI enter in Power Pu rchase Agreements to buy electricit y from SPDs; (2) NVVN and SECI then 
enter into Power Sale Agreements to sell electricity to Discoms; and (3) the Discoms then resell the electricity 
to downstream retail and commercial  consumers." United States' comments on India's response to Panel 
question No. 48, para. 23. 
454 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.70. 
455 India's comments on the United States' resp onse to Panel question No. 48, para. 25. 
456 United States' comments on India's resp onse to Panel question No. 48, para. 22. 
457 In this respect, the panel was addressing specific arguments raised by the parties in that case that 
"with a view to commercial resale" mean s either "a purchase with the aim to resell for profit",  or more broadly 
as "with a view to being sold or introduced into the stream of commerce, trade or market, regardless of any 
profit". Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.146. The panel observed 
that the Government of Ontario purcha sed electricity from genera tors that was "eventually sold to consumers" 
by certain intermediaries, including government-owned entities and private-sector retailers. Panel Reports, Canada – Renewable Energy /Feed-in Tariff Program , para. 7.147. In reaching its conclusion under this 
 WT/DS456/R 
 
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  7.179.  For the purposes of our limited analysis and review, we do not consider it necessary to 
decide on the legal question of the scope of the relevant transaction(s) for the purpose of assessing whether a governmental purchase is "with a view to commercial resale" within the meaning of Article III:8(a). However, we note that the manner in which the relevant transaction(s) 
is defined would have potentially significant implications for the assessment of whether there is "a 
resale of a product at arm's length between a willing seller and a willing buyer"
458, taking into 
account the Appellate Body's understanding that "whether a transaction constitutes a 'commercial 
resale' must be assessed having regard to the entire transaction".459  
7.180.  For example, the Appellate Body considered "profit-orientation [of the seller] generally as 
an indication that a resale is at arm's length", and noted that in some circumstances "it may be useful to look at the seller's long term strategy" to consider whether they are "acting in a self-
interested manner".
460 In the present case, it is undisputed that the government agencies that 
purchase electricity are not themselves  profit-oriented or self-interested.461 It is also undisputed 
that those governmental agencies administer schem es that are designed to enable the sale of 
electricity at a reduced cost to downstream intermediaries and final consumers.462 Thus, we 
consider that, with respect to the immediate  resale of electricity to Discoms, it would be difficult to 
characterize the transaction as a "commercial resale " from the perspective of the relevant "sellers" 
( i . e .  N V V N  a n d  S E C I ) .  I n  t h i s  r e g a r d ,  w e  r e c a l l  t h a t  t h e  N V V N  a n d  S E C I  e n t e r  i n t o  l o n g  t e r m  
contractual purchase and sale agreements, and serve as vehicles for the bundling and VGF schemes whereby government resources (either in the form of coal power allocations or capital grants) are supplied in order to lower the cost of the electricity sold downstream.
463 The legal issue 
that arises from this is whether the lack of commercial resale from a seller's (or buyer's) 
perspective alone  could be sufficient to establish that a transaction is not a "commercial resale" 
within the meaning of Article III:8(a). 
7.181.  Beyond the government's perspective in the context of its immediate resale of electricity to 
Discoms, the Appellate Body explained that "[t]he transaction must also be assessed from the perspective of the buyer", and that "[a] commercia l resale would be one in which the buyer seeks 
to maximize his or her own interest".
464 Whether Discoms are viewed only as buyers in the 
government's immediate resale of electricity, or also as sellers in the full chain of transactions465, 
the parties attach different significance to the fact that the bundling and VGF mechanisms are designed to ensure the viability of Discoms in th eir transmission of solar-generated electricity to 
retail consumers. India argues that "the inte rvention by the Government in designing the 
                                                                                                                                               
element, the panel considered that "the Government of Ontario's purchases of electricity … may be considered 
to be a first step in the resale of electricity to retail consumers", and found relevant the "fact that electricity 
purchased by the Government of Onta rio under the FIT Programme is bought  from generators and sold to retail 
consumers through the same channels as all othe r electricity by [government-owned and municipal 
intermediaries] in competition with private sector electricity retailers ". Panel Reports, Canada – Renewable 
Energy/Feed-in Tariff Program , para. 7.148. (emphasis original) See also parties' responses and comments on 
Panel question No. 55. 
458 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.70. 
459 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.71. 
460 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.71. At the 
same time, the Appellate Body "accept[ed] that strategies  can vary widely and thus do not see this applying 
axiomatically". 
461 See United States' comments on India's response to Panel question No. 48, para. 24; United States' 
comments on India's response to Panel question No. 49, para. 27. 
462 See United States' response to Panel question No. 51(a), para. 33. 
463 With respect to the 'trading margin' that is incl uded in the price at which NVVN and SECI sell to 
Discoms, India explains that "NVVN and SECI were not free to impose a trading margin based on their pure 
commercial assessment/profit maximization and interests"  but rather "are bound by a cap … imposed on them 
by a Government direction which ther efore removes the concept of 'commerc ial sale' from their operations, as 
they are no longer free to sell to maximize their profits in view of market conditions ". India's response to Panel 
question No. 52, para. 39. The United States argues that "[e]ven if the trading margin imposed on NVVN/SECI 
does not allow for recovery of costs or profits", the procurement would st ill be "with a view to commercial 
resale" because "NVVN AND SECI purchase the electric ity from SPDs … with the knowledge and intent that 
Discoms will resell the electricity to downstream retail and commercial consumers". United States' comments on India's response to Panel question No. 52, para. 29. 
464 Appellate Body Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 5.71. 
465 We note India considers the United  States to incorrectly classify th e Discoms as "sellers" based on its 
view that "the focus of Arti cle III:8(a) is on the Government as the se ller of the product that is purchased". 
India's comments on the United States' response to Panel question No. 51, para. 30. WT/DS456/R 
 
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  procurement programmes incorporating bundling and VGF, therefore, essentially ensured that the 
sale of solar power is not linked to the costs of generation of such power, since that would have essentially made it unviable for Discoms to purchase it, or for consumers to pay for the same".
466 
The United States submits that "India's statem ents demonstrate that the bundling and VGF are 
designed to make the purchase and resale of electricity viable as a commercial proposition  for 
Discoms", and that NVVN and SECI procure electricity "with knowledge and intent that electricity will compete on the market and therefore need to be competitively priced to ensure that it is 
marketable to consumers".
467  
7.182.  The parties also raise various considerations of potential relevance to the assessment of 
the purchases and sales of electricity that occu r downstream from the involvement of NVVN and 
SECI, particularly concerning the extent to whic h Discoms themselves are profit-seeking entities. 
The United States argues, for example, that ma ny of the Discoms "to which India resells solar 
power are corporatized entities with a fiduci ary duty to maximize profits or returns for 
shareholder[s]".468 In response, India states that the evidence provided by the United States 
"discusses private sector distribution companies, with which no power sale agreements have been 
signed in Phase I and Phase II. As of now, all power sale agreements under Phase I and Phase II 
have been entered into only with public sector Discoms."469  
7.183.  Apart from the status of the particular Discoms to which NVVN and SECI sell electricity, 
both parties advance arguments as to Discoms' commercial nature based on the market and regulatory conditions in which they operate. In the view of the United States, the "fact that most Indian Discoms are either wholly private or corp oratized demonstrates that India's electricity 
market is competitive, even if highly regulated. This means that when Discoms resell the electricity 
purchased from NVVN/SECI, they do so in competit ion with other Indian Discoms, including wholly 
private Discoms".
470 The United States also argues that "India has not denied that the CERC/SERC 
tariff is designed to allow for Discoms to recover a profit. Nor has India disputed that the Discoms 
are properly viewed as 'profit-oriented' actors that 'seek to maximize [their] own interests".471  
7.184.  India contends that the fact that Discoms are "corporatized entities, does not change their 
fundamental character as regulated entities which operate within the framework of a license from 
the Government".472 India further submits that "Discoms resell electricity at tariffs regulated by 
the state electricity regulatory commissions, and cannot charge in excess of the tariff determined 
by the commission."473 According to India, this regulation of "the sale price of electricity ensure[s] 
that the interests of consumers are accounted for  and the sale of electricity in the market is viable 
to the extent that the cost of supply is recovere d by the Discoms, and therefore consistency in the 
supply of affordable electricity is ensured".474 Additionally, India contends that "there is no 
competitive market in terms of Discoms 'competing' with each other to provide electricity to 
consumers" as consumers do not choose the Discom from which they purchase electricity.475 In 
India's view, Discoms "are not free to undertake 'commercial resale'. Their fiduciary duty to their 
shareholders is therefore over-ridden by the regulatory regime".476  
7.185.  We note some parallelism between the part ies' arguments in the present dispute and those 
that were examined by the panel in Canada – Renewable Energy / Feed-In Tariff Program . In 
particular, the panel in that dispute was not pers uaded by Canada's argument that there could be 
                                               
466 India's second written submission, para. 34. 
467 United States' response to Pa nel question No. 51, para. 36. 
468 United States' opening statement, para. 40 (citing Private Distribution Companies in India, (Exhibit 
USA-36)). 
469 India's second written submission, fn 38. 
470 United States' response to Pa nel question No. 54, para. 38. 
471 United States' comment to India's response to Pa nel question No. 53(b), para. 31 (citing Appellate 
Body Reports, Canada – Renewable Energy /Feed-in Tariff Program , para. 5.71). 
472 India's comment to the United States' resp onse to Panel question No. 50, para. 28. 
473 India's comment to the United States' response to Panel question No. 50, para. 28 (citing Electricity 
Act of 2003 [No. 36 of 2003], §§ 76(1) (2003) ("Electricity Act"), (Exhibit USA-20), Section 42). 
474 India's comment to the United States' response to  Panel question No. 50, para. 28; see also India's 
response to Panel question No. 53(b), para. 45; India's comment to the United States' response to Panel question No. 54, para. 33. 
475 India's comment to the United States' response to  Panel question No. 54, para. 36; see also India's 
comment to the United States' response to Panel question No. 50, para. 27. 
476 India's comment to the United States' resp onse to Panel question No. 54, para. 32. WT/DS456/R 
 
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  no "commercial resale" because a market "'where supply and demand freely meet' does not exist 
in the Ontario electricity system".477 The panel in that dispute also dismissed considerations of the 
fact that the initial resale by the government was only geared towards cost-recovery for the entity concerned, and went further to examine the profit -making of downstream intermediaries, some of 
which were governmental.
478 These aspects of the panel's reasoning were not examined on appeal 
and were rendered moot by the Appellate Body's reversal of other findings by the panel.  
7.186.  For the purposes of our limited analysis and review479, we do not consider it necessary to 
decide on the legal issues raised above. Rather, we have identified the legal issues that would 
need to be considered under this element and the parties' positions on those issues. In addition, 
we have set out pertinent undisputed facts in relation to the bundling and VGF schemes administered through NVVN and SECI, respectively, including a factual description of the regulated 
prices at which electricity is purchased and sold by NVVN and SECI. 
7.2.7  Conclusion on claims under Article 2.1 of the TRIMs Agreement and Article III:4 of 
the GATT 1994 
7.187.  In accordance with the Appellate Body's legal interpretation of Article III:8(a) of the 
GATT 1994 as applied to the governmental purchase of electricity and discrimination against foreign generation equipment, we have found that the discrimination relating to solar cells and 
modules under the DCR measures is not covered by the derogation of Article III:8(a) of the 
GATT 1994. Consequently, the discrimination relating to solar cells and modules under the DCR measures is inconsistent with Article 2.1 of the TRIMs Agreement and Article III:4 of the GATT 1994.  
7.3  Defences under Articles XX(j) and XX(d) of the GATT 1994  
7.3.1  Introduction  7.188.  We now turn to India's defences under the general exceptions in Articles XX(j) and XX(d) 
of the GATT 1994. The general exceptions in Articl e XX of the GATT 1994 apply to the obligation in 
Article III:4 of the GATT 1994, and also to the corre sponding obligation in Article 2.1 of the TRIMs 
Agreement.
480 As the party invoking general exceptions under Article XX of the GATT 1994, India 
bears the burden of demonstrating that the GATT-inconsistent measures at issue are justified 
under those exceptions. In addition, the parties' arguments reflect a shared understanding that what needs to be justified under Article XX of the GATT 1994 is not the National Solar Mission as a whole, but rather the DCR measures at issue.
481 
7.189.  India advances a general underlying argument concerning the rationale of the DCR 
measures which forms the common basis for its more specific arguments under Articles XX(j) and XX(d).
482 India argues that it has an obligation to ta ke steps to achieve energy security, mitigate 
climate change, and achieve sustainable development,  and that this includes steps to ensure the 
adequate supply of clean electricity, generated from solar power, at reasonable prices.483 India 
                                               
477 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , para. 7.148. 
478 Panel Reports, Canada – Renewable Energy / Feed-In Tariff Program , paras. 7.149-7.150. 
479 See para. 7.138.  above. 
480 Article 3 of the TRIMs Agreement provides that "[a]ll exceptions under GATT 1994 shall apply, as 
appropriate, to the provis ions of this Agreement". 
481 In Thailand – Cigarettes (Philippines) , the Appellate Body clarified that "when Article XX(d) is invoked 
to justify an inconsistency with Article III:4, what must be shown to be 'necessary' is the treatment giving rise to the finding of less favourable treatment.  Thus , when less favourable treatment is found based on 
differences in the regulation of imports and of like dome stic products, the analysis of an Article XX(d) defence 
should focus on whether those regula tory differences are "n ecessary" to secure compliance with 'laws or 
regulations' that are not GATT-inconsistent". Appellate Body Report, Thailand – Cigarettes (Philippines) , 
para. 177 (citing See GATT Panel Report, US – Section 337 Tariff Act , para. 5.27). See also para. 7.19.  above. 
482 In its first written submission, India provides a lengthy discussion of the policy objectives it is 
pursuing before turning to its spec ific arguments under Articles XX(j) and XX(d). India's first written 
submission, paras. 168-207. In dia advances the same argu ment in the context of Article III:8(a). See, for 
instance, India's first written submission, para. 142. 
483 India's first written submission, paras. 188, 192, and 202. WT/DS456/R 
 
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  explains that doing so would reduce its reliance on imported oil and coal.484 According to India, 
ensuring an adequate supply of clean energy genera ted from solar power is only possible if Indian 
SPDs in turn have access to a continuous and affordable supply of the solar cells and modules they use to generate that solar power.
485 India emphasizes that its SPDs currently depend 
predominantly on foreign solar cells and modules for that purpose, and according to India this 
dependence on imports of foreign solar cells and modules creates a risk of disruption in continuous and affordable supply of solar cells and modules.
486 India submits that it is therefore necessary to 
ensure that there is an adequate reserve of domestic manufacturing capacity for solar cells and 
modules in case there is a disruption in supply of foreign solar cells and modules.487 India refers to 
this as an "emergency reserve".488 India argues that the DCR measures are necessary to the 
acquisition of solar cells and modules by SPDs because they are the only means that India has to 
increase domestic manufacturing capacity of cell s and modules, and thereby reduce the risk of a 
disruption in Indian SPDs' access to a continuous and affordable supply of the solar cells and modules needed to generate solar power.
489 In sum, India argues that the DCR measures "are 
essential to the acquisition of solar cells and modules by SPDs that are engaged in solar power 
generation, in order to ensure realization of India's policy objectives of energy security, sustainable development and ecologically sustainable growth".
490 
7.190.  Based on the foregoing, India claims that the DCR measures are "essential to the 
acquisition or distribution of products in short supply" within the meaning of Article XX(j).491 
Specifically, India argues that the DCR measures are aimed at the "acquisition or distribution" of solar cells and modules "by SPDs that are engaged in solar power generation".
492 India submits 
that solar cells and modules are "products in general or local short supply" in India on account of 
its lack of domestic manufacturing capacity.493 India has also argued that the risk of SPDs being 
unable to access these products makes them "products in general or local short supply" in India.494 
India argues that the DCR measures are "essential" to the acquisition of solar cells and modules by 
SPDs because they are the only means that India has to increase domestic manufacturing capacity of cells and modules, and thereby reduce the risk  of a disruption in Indian SPDs' access to a 
continuous and affordable supply of the solar cells and modules needed to generate solar power.
495 
India further submits that the DCR measures comply with the elements of the proviso  in the 
second part of Article XX(j), as they do not adversely impact the equitable entitlement to the 
product by other Members, and the conditions giving rise to the situation of short supply have not 
yet ceased to exist.496  
                                               
484 India's first written submission, paras. 140 and 170-171. 
485 E.g., India's first written submission, para. 261 ("India is seeking to develop a functional local 
manufacturing base for cells and modules, which are the essential components in a so lar PV generation plant, 
thereby ensuring a sustained supply of the same in the ev ent of disruptions in imports"). See also India's first 
written submission, para. 229, 236 (subheading (ii), first bullet point). 
486 India's first written submission, paras. 168, 193, 209, 236 (subheading (i), third bullet point; and 
subheading (ii) second bullet point), and 272. 
487 India's first written submission, paras. 193, 201, and 209. At paragraph 195ff, India discusses 
indigenous manufacturing as an "emergency reserve". 
488 India's first written submission, paras. 195-201. 
489 India's first written submission, para. 236 (suheading (iv), last bullet point) and 262; India's second 
written submission, para. 65. 
490 India's first written submission, para. 229; India' s opening statement at the first meeting of the 
Panel, para. 51. 
491 India's first written submission, paras. 208-237; Indi a's opening statement at the first meeting of the 
Panel, paras. 41-51; India's responses to Panel question Nos. 25-31; India's second written submission, paras. 46-119; India's opening statement at the second meeting of the Panel, paras. 19-29; India's responses 
to Panel question Nos. 56, 59-62, 64-65, 69, and 71-73; India's comments on the United States' responses to Panel question Nos. 56-59, 69, 73, and 74. 
492 See para. 7.200.  below. 
493 See para. 7.220.  below. 
494 See paras 7.237.  to 7.239.  and 7.242.  below. 
495 India's first written submission, para. 236 (heading (i v), last bullet point), stating in the context of 
Article XX(j) that India "does not also have within its di sposal any alternative measur e that could potentially be 
as effective as DCR in achieving the objective of incentivizing local manufacturing of cells and modules"). See also India's second written submission, paras. 74-86. 
496 India's first written submission, paras. 230-234, para. 236, and subheading (iv); India's opening 
statement at the first meeting of the Panel, para. 51; In dia's response to Panel question No. 28; India's second 
 WT/DS456/R 
 
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  7.191.  India additionally claims that the DCR measures are "necessary to secure compliance with 
laws or regulations" within the meaning of Article XX(d).497 In this regard, India refers to a series 
of international and domestic instruments reflecting its obligations to mitigate climate change and achieve sustainable development. India argues that  because the DCR measures reduce the risk of 
a disruption in Indian SPDs' access to a continuous and affordable supply of the solar cells and 
modules needed to generate solar power, the DCR measures "secure compliance with" those "laws and regulations".
498 As in the context of Article XX(j), India argues that the DCR measures are 
"necessary" because they are the only means it has to incentivize local manufacturing of solar cells 
and modules, and thereby reduce this risk.499  
7.192.  With regard to the chapeau of Article XX, India submits that the DCR measures are not 
applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination 
between countries where the same conditions prevail, or a disguised restriction on international 
trade.500 
7.193.  According to the United States, India has failed to demonstrate that the DCR measures are 
justified under Article XX(j).501 The United States accepts that measures taken to increase 
domestic manufacturing capacity for certain products may, if those products are in short supply, qualify as a measure involving the "acquisition" of those products.
502 The United States also 
accepts that if the DCR measures were found to be measures "essential to the acquisition or 
distribution of products in general or local shor t supply", they would comply with the elements of 
the proviso  in the second part of Article XX(j).503 However, it argues that solar cells and modules 
are not "products in general or local short supply" in India within the meaning of Article XX(j). In 
addition to arguing that this threshold element of Article XX(j) is not satisfied, the United States 
argues that India has failed to demonstrate that the measures are "essential" to the acquisition of solar cells or modules, because there are several less trade-restrictive and WTO-consistent 
alternative measures that India could take to reduce  the risk of a disruption in Indian SPDs' access 
to a continuous and affordable supply of the solar cells and modules needed to generate solar power, including but not limited to less trade-restrictive and WTO-consistent alternative measures 
for increasing domestic manufacturing capacity.  
7.194.  As noted at the outset of our findings, the United States does not contest the legitimacy of 
the objectives pursued by India.
504 However, the United States argues that India has failed to 
demonstrate that the DCRs are "necessary to secure compliance with laws or regulations" under 
                                                                                                                                               
written submission, paras. 108-119; India's opening statem ent at the second meeting of the Panel, paras. 28-
29. 
497 India's first written submission, paras. 238-263; Indi a's opening statement at the first meeting of the 
Panel, paras. 52-62; India's responses to Panel question Nos. 33-36; India's second written submission, paras. 120-144; India's opening statement at the second meeting of the Panel, paras. 30-37; India's responses 
to Panel question Nos. 66-68; India's comments on the Un ited States' responses to Pa nel question Nos. 69, 73, 
and 74. 
498 India's first written submission, para. 255 (stating that "[t]he DCR Measures have been designed to 
secure compliance with India's obligations under its law and regulations which require it to ensure ecologically sustainable growth and sustainable development. The DCR Measures seek to achieve this by creating a local 
manufacturing base for solar PV cells and modules, in orde r to ensure the ability of satisfy the requirements for 
such cells and modules without being susceptible to the risks of imports, such as price fluctuations, and geo-political factors.") See also India's closing statem ent at the first meeting of the Panel, para. 10. 
499 India's first written submission, para. 262 (stating, in the context of Article XX(d), that "India does 
not have any reasonably available alte rnatives to achieve its objectives of building a domestic manufacturing 
base for solar cells and modules with a view to ensu ring domestic resilience to the fluctuations and 
uncertainties associated with imports"). See also India' s opening statement at the first meeting of the Panel, 
para. 62. 
500 India's first written submission, paras. 264-273; India's Response to Panel question No. 38; India's 
second written submission, paras. 145-154; India's open ing statement at the second meeting of the Panel, 
paras. 38-39. 
501 United States' opening statement at the first meeting of the Panel, paras. 41-47; United States' 
responses to Panel question Nos. 25-32; United States' second written submission, paras. 34-43; United States' opening statement at the second meeting of the Panel, paras. 22-37; United States' responses to Panel question Nos. 56-61, 63, 69-70, 73, and 74; United States' comments on India's responses to Panel question Nos. 56, 59-62, 64-65, 69, and 71-73. 
502 United States' response to Panel question No. 56(b), paras. 44-45. 
503 United States' response to Panel question No. 63. 
504 See para. 7.18.   WT/DS456/R 
 
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  Article XX(d).505 The United States argues as a threshold matter that the DCR measures are not 
designed "to secure compliance with laws or regulations" within the meaning of Article XX(d). The United States further argues that India has in any event failed to demonstrate that the DCR measures are "necessary" to mitigate climate change and achieve sustainable development as 
there are several less trade-restrictive and WTO-consistent alternative measures that India could 
take to reduce the risk of a disruption in Indian SPDs' access to a continuous and affordable supply of the solar cells and modules needed to generate solar power, including but not limited to less 
trade-restrictive and WTO-consistent alternative measures for increasing domestic manufacturing 
capacity. 
7.195.  With regard to the chapeau of Article XX, the United States submits that "if India seeks the 
protection of paragraphs (d) and (j) of Article XX, India bears the burden of demonstrating that 
the DCRs at issue are justified pursuant to those provisions, as well as  the chapeau of Article XX. 
India has not met this burden."
506 However, the United States advanced no argumentation with 
respect to the requirements of the chapeau.  
7.196.  Canada507, the European Union508, and Japan509 submit that the Panel should reject India's 
defence under Article XX(j). Each argues that solar cells and modules are not "products in general or local short supply" in India
510, and that the DCR measures are not "essential" to the acquisition 
of solar cells or modules.511 With respect to Article XX(d), Canada and the European Union 
question whether the international and/or domestic  instruments referred to by India are "laws or 
regulations", and whether the DCR measures can be said to "secure compliance" with them.512 In 
addition, the European Union and Japan argue that  the DCR measures are not "necessary" within 
the meaning of Article XX(d).513 The European Union and Japan further argue that the DCR 
measures, as essentially "protectionist" policies, do not meet the requirements of the chapeau.514  
7.197.  In light of the focus of the parties' arguments, we consider that the main issues before us 
are whether the DCR measures involve the acquisition or distribution of "products in general or 
local short supply" within the meaning of Ar ticle XX(j) of the GATT 1994, whether the DCR 
measures are measures "to secure compliance with laws or regulations" within the meaning of 
Article XX(d) of the GATT 1994, and whether the DCR measures are "essential" (Article XX(j)) or 
"necessary" (Article XX(d)). If we find that the DCR measures are provisionally justified under Articles XX(j) or XX(d), then we will proceed to examine whether the DCR measures are applied in a manner that meets the requirements of the chapeau of Article XX.  
                                               
505 United States' opening statement at the first meeting of the Panel, paras. 48-52; United States' 
responses to Panel question Nos. 33 and 37; United States' second written submission, paras. 44-75; United 
States' opening statement at the second meeting of the Panel, paras. 38-45; United States' responses to Panel question Nos. 69-70, 73, and 74; United States' comments  on India's responses to Panel question Nos. 66-69 
and 71-73. 
506 United States' opening statement at the first meeting of the Panel, para. 40. (emphasis original) 
507 Canada's third-party st atement, paras. 13-28. 
508 European Union's third-party su bmission, paras. 46-58; European Union's third-party statement, 
paras. 14-15. 
509 Japan's third-party submission, paras. 14-23; Japan's third-party stat ement, paras. 7-8. 
510 Canada's third-party statemen t, paras. 19-23; European Un ion's third-party submission, 
paras. 51-54; Japan's third-party submission, para. 19. 
511 Canada's third-party st atement, paras. 15-18; European Union's third-pa rty submission, paras. 55-
58; Japan's third-party su bmission, paras. 20-22. 
512 Canada's response to Panel question No. 6 to th e third parties, para. 31;  European Union's third-
party submission, paras. 64-68; 
513 European Union's third-party su bmission, paras. 69-76; Japan's th ird-party submission, paras. 14 
and 24. 
514 European Union's third-party su bmission, paras. 77-83; European Union's third-party statement, 
para. 20; Japan's third-party submission, para. 23; Japan's third-party statement, para. 8. WT/DS456/R 
 
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  7.3.2  Whether the DCR measures involve "the acquisition or distribution of products in 
general or local short supply" 
7.3.2.1  Introduction 7.198.  Article XX(j) establishes a general exception for measures essential to the acquisition or 
distribution of products in general or local short supply. It provides that nothing in the GATT 1994 
shall be construed to prevent the adoption or enforcement by any Member of measures: 
essential to the acquisition or distribution of products in general or local short supply; 
Provided that any such measures shall be consistent with the principle that all 
contracting parties are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of the Agreement shall be discontinued as soon as the conditions giving rise 
to them have ceased to exist. The CONTRACTING PARTIES shall review the need for 
this sub-paragraph not later than 30 June 1960. 
7.199.  The logical starting point of an assessment under Article XX(j) is the identification of the 
products that are alleged to be in "general or local short supply". We consider that it is for the 
party invoking and carrying the burden of proof under  Article XX(j) to identify what those products 
are.  
7.200.  In this case, India has clearly identi fied solar cells and modules as the products 
allegedly in "general or local short supply" for the purpose of Article XX(j), and it has 
argued that the DCR measures are aimed at the "acquisition" of so lar cells and modules 
"by SPDs that are engaged in solar power generation".515 In response to the Panel's 
second set of questions, India confirme d that "[t]he DCR measures involve the 
acquisition of solar cells and modules by SPDs".516 However, India then added, without 
any further elaboration, that "[e]qually, they could be seen  as enabling the distribution 
of solar power generated from solar cells and modules".517 This statement seems to 
allude to an alternative approach to an alysing the challenged DCR measures under 
Article XX(j) that would constitute a fundamen tal change in India's argumentation, as it 
would involve focusing on a different produc t that is allegedly in short supply (i.e. 
electricity, as opposed to solar cells and modu les), a different set of transactions relating 
to those products (i.e. their "distribution" rather than "acquisition"), and potentially by 
different entities (i.e. unspecified entities other than SPDs involved in the distribution). It 
appears to us that with the exception of th is one statement, the entirety of India's 
argumentation under Article XX(j) in these proceedings rests on the premise that the 
DCR measures are aimed, in India's words,  at the "acquisition" of solar cells and 
modules "by SPDs that are engaged in solar po wer generation". As noted, this statement 
was made without any further elaboration. Ther efore, we do not consider this statement, 
alluding to an alternative way that the DC R measures "could be seen" under Article 
XX(j), to reflect any fundamental change in India's argumentation.518 To the extent that 
we are to infer from this statement that Indi a is actually arguing in  the alternative that 
the DCR measures involve "the distribution of  solar power generated from solar cells and 
modules", then we consider th is undeveloped argument to be  insufficient to meet India's 
burden of proof under Article XX(j).519  
                                               
515 India's first written submission, paras. 229 and 236 (subheading (ii), first bullet point), and India's 
opening statement at the first meeting of the Panel, para . 50 (in each instance stating that "the DCR Measures 
are essential to the acquisition of solar cells and modules by SPDs that are engaged in solar power generation"). 
516 India's response to Panel question No. 56(a), para. 60. 
517 India's response to Panel question No. 56(a), para. 60. 
518 Likewise, the United States indicates that it "under stands India's position to be that the measures at 
issue involve only the 'acquisition' of cells and modules". United States' comments on India's response to Panel 
question No. 56(a), para. 38. (emphasis original) 
519 See Appellate Body Report, Thailand – Cigarettes (Philippines) , paras. 178-180. WT/DS456/R 
 
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  7.201.  Our analysis thus proceeds on the understanding  that solar cells and modules are the 
products allegedly in "general or local short supply" for the purpose of Article XX(j), and that the 
DCR measures are aimed at the "acquisition" of so lar cells and modules "by SPDs that are engaged 
in solar power generation". If we find that solar cells and modules are "products in general or local 
short supply", we will then examine, as a second step, whether the DCR measures involve the "acquisition or distribution" of those products. 
7.3.2.2  Interpretation of "product s in general or local short supply" 
7.202.  We note at the outset that the general exception contained in Article XX(j) has never been 
invoked as a defence before a GATT/WTO dispute settlement panel. Article 3.2 of the DSU directs us to interpret this provision "in accordance with customary rules of interpretation of public 
international law". In accordance with the general ru le of treaty interpretation reflected in Article 
31 of the Vienna Convention on the Law of Treaties, we will interpret the terms "products in general or local short supply" pursuant to the ordinary meaning of the terms of Article XX(j), read 
in their context and in the light of the obje ct and purpose of the covered agreements. In 
accordance with Article 32 of the Vienna Convention, we may have recourse to supplementary means of interpretation to confirm the meaning resulting from the application of Article 31, or to 
determine the meaning of the terms if we conclude that the interpretation according to Article 31 
leaves the meaning ambiguous or obscure, or leads to a result that is manifestly absurd or unreasonable.  
7.203.  We begin with the ordinary meaning of the words "in short supply". In China – Raw 
Materials,  the Appellate Body set forth its understanding  of the meaning of these terms, as context 
to the interpretation of Article XI:2(a) of the GATT 1994: 
We consider that context lends further support to this reading of the term "critical 
shortage" [in Article XI:2(a)]. In particular, the words "general or local short supply" 
in Article XX(j) of the GATT 1994 provide releva nt context for the interpretation of the 
term "critical shortage" in Article XI:2(a). We note that the term "in short supply" is 
defined as "available only in limited quantity, scarce".
520 Thus, its meaning is similar 
to that of a "shortage", which is defined as "[d]eficiency in quantity; an amount lacking".
521 Contrary to Article XI:2(a), however, Article XX(j) does not include the 
word "critical", or another adjective further qualifying the short supply. We must give 
meaning to this difference in the wording of these provisions. To us, it suggests that 
the kinds of shortages that fall within Article XI:2(a) are more narrowly circumscribed than those falling within the scope of Article XX(j).
522 
7.204.  Thus, the Appellate Body understood the concept of "products in … short supply" to mean 
products "available only in limited quantity, scarce". In other words, products are "in short supply" when there is a "deficiency" or "amount lacking" in  the "quantity" that is "available". Therefore, as 
a starting point to our interpretative analysis, it is clear to us that the concept of "products in … 
short supply" is concerned with the quantity of the product that is available. 
7.205.  We consider that there must be some objective point of reference to serve as the basis for 
an objective assessment of whether there is a "deficiency" or "amount lacking" in the "quantity" of 
a product that is "available".
523 The dictionary definitions referred to above do not expressly 
identify the point of reference for an assessment of whether there is a "deficiency" or "amount lacking" in the "quantity" of a product that is "available". However, they suggest that the point of 
reference relates to the "quantity" of a product that is "available", such as to enable an 
assessment of whether there is a "deficiency" or "amount lacking" in that available quantity 
                                               
520 (footnote original) Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) 
(Oxford University Press, 2007), Vol. 2, p. 3115. 
521 (footnote original) Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) 
(Oxford University Press, 2007), Vol. 2, p. 2813. 
522 Appellate Body Report, China – Raw Materials , para. 325. 
523 We note that, among other things, this could lead to the result that there would be no objective basis 
upon which to make an objective assessment of wh ether a Member taking measures essential for the 
acquisition or distribution of products in general or local short supply was in compliance with the requirement, in the proviso to Article XX(j), that such measures "shall be discontinued as soon as the conditions giving rise 
to them have ceased to exist". WT/DS456/R 
 
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  relative to demand. In this respect, we note that the definition of "in short supply" referred to by 
the Appellate Body is found within the broader defi nition of the word "supply", and is immediately 
preceded by the following main definition of "s upply": "[t]he amount of any commodity actually 
produced and available for purchase. Correl. to demand " (emphasis original).524 Thus, in its 
ordinary meaning, the word "supply" is the "correlative" of the word "demand", which is to say 
that the words "supply" and "demand" involv e an interrelation and degree of mutual 
interdependency. This strongly implies that there is a "deficiency" or "amount lacking" in the 
"quantity" of a product that is "available" when the amount of the product available does not meet 
demand for that product. This understanding is reinforced by the fact that in China – Raw 
Materials , the Appellate Body understood the term "sho r t  s u p p l y "  u s e d  i n  A r t i c l e  X X ( j )  t o  b e  
synonymous with the term "shortage" used in Article XI:2(a). Although the Appellate Body 
considered that "the kinds of shortages" that fall within the scope of Article XX(j) are not as 
narrowly circumscribed as those falling within the scope of Article XI:2(a), it considered both provisions to deal with "shortages", and used the term "shortage" interchangeably with the term 
"short supply". We note that a product "shortage" is widely understood to mean a situation in 
which the supply of a product is not sufficient to meet demand.
525 Given that the word "supply" is 
the correlative of "demand", and their similarity with the term "shortage", we consider that the 
terms "products in … short supply" likewise refer to products in respect of which the quantity of 
available supply does not meet demand.  
7.206.  Turning to the remainder of the phrase in question, Article XX(j) refers to products in 
"general or local" short supply. We consider that these words relate to the extent of the 
geographical area or market in which the available quantity of supply of a product does not meet 
demand. The word "local" is defined as "in a part icular locality or neighbourhood, esp. a town, 
county, etc., as opp. to the country as a whole", and "limited or peculiar to a particular place or 
places".526 The word "general" is defined as "all or nearly all of the parts of a (specified or implied) 
whole, as a territory, community, organization, etc.; completely or nearly universal; not partial, particular, local, or sectional".
527 Taken together, the words "general or local" give Article XX(j) a 
wide ambit, and in our view cover product shortages within a region inside a country, a single 
country as a whole, an area including several countries, or even global shortage of a product.  
7.207.  Based on the foregoing, we consider that the ordinary meaning of the terms "products in 
general or local short supply" refers to a situation in which the quantity of available supply of a 
product does not meet demand in the relevant geographical area or market.528  
7.208.  We do not consider it necessary to have recourse to supplementary means of 
interpretation to determine the meaning of thes e terms. However, we have had recourse to 
supplementary means of interpretation to confir m our interpretation of the terms "products in 
general or local short supply".  
7.209.  The report on discussions in the London  session of the Preparatory Committee of the 
United Nations Conference on Trade and Employment, which took place in 1946, notes that: 
The Preparatory Committee agreed that during a post-war transitional period it should 
be permissible to use [quantitative] restrictions to achieve [i] the equitable 
distribution of products in short supply , [ii] the orderly maintenance of war-time price 
control by countries undergoing shortages as a result of the war, and [iii] the orderly 
liquidation of temporary surpluses of government-owned stocks and of industries, 
                                               
524 Shorter Oxford English Dictionary , 5th edn., W.R. Trumble, A. Stevenson (eds.) (Oxford University 
Press, 2002), Vol. 2, p. 3118. (emphasis original) 
525 J. Black, N. Hashimzade, G. Myles, Dictionary of Economics  (Oxford University Press, 2009), p. 41 
(defining "shortage" as "[a] situation when the demand for a good or service exceeds the available supply"); F. 
Foldvary, Dictionary of Free-Market Economics , (E. Elgar, 1998) p. 262 (defining "shortage" as "[t]he quantity 
demanded being greater than the quantity  supplied at the prevailing price"). 
526 Shorter Oxford English Dictionary , 5th edn., W.R. Trumble, A. Stevenson (eds.) (Oxford University 
Press, 2002), Vol. 1, p. 1619. 
527 Shorter Oxford English Dictionary , 5th edn., W.R. Trumble, A. Stevenson (eds.) (Oxford University 
Press, 2002), Vol. 1, p. 1081. 
528 The "relevant geographical area or market" would vary from case-to-case, and we use this 
expression to include, as appropriate, a region inside a country, a single country as a whole, an area including 
several countries, or a global shortage of a product. WT/DS456/R 
 
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  which were set up owing to the exigencies of war, but which it would be uneconomic 
to maintain in normal times. … all these exceptions would be limited to a specified post-war transitional period, which might, however, be subject to some extension in particular cases.
529  
7.210.  These three different situations were provid ed for in Article 25:2(a) of the drafts of the 
Havana Charter for an International Trade Organization. Article 25:2(a) provided that the obligation to eliminate quantitative restrictions would not extend to the following: 
Prohibitions or restrictions on imports or exports instituted or maintained during the 
early post-war transitional period which are essential to: (i) The equitable distribution 
among the several consuming countries of products in short supply, whether such products are owned by private interests or by the Government of any Member ; (ii) 
The maintenance of war-time price control by a Member country undergoing shortages 
subsequent to the war; (iii) The orderly liquidation of temporary surpluses of stocks owned or controlled by the government of any Member or of industries developed in 
any Member country owing to the exigencies of war, which would be uneconomic to 
maintain in normal conditions …
530 
7.211.  The Second Session of the Preparatory Committee was held in Geneva from 10 April 1947 
through 30 October 1947. During the Geneva se ssion of the Preparatory Committee, it was 
decided to move these three post-war temporary exceptions to Article 43 (general exceptions to the commercial policy chapter) as a new second part of Article 43. Measures of these three types were to be removed in principle not later than 1 January 1951. It was stated that: 
The effect of this would be to permit during the transitional period [i] the use of 
differential internal taxes and mixing regulations as well as quantitative restrictions in order to distribute goods in short supply , [ii] to give effect to price controls based on 
shortages and [iii] to liquidate surplus stocks or uneconomic industries carried over 
from the war period.
531  
7.212.  The general exceptions set forth in Article 43 ultimately became Article XX of the General 
Agreement on Tariffs and Trade. In the 30 Octobe r 1947 text of the General Agreement on Tariffs 
and Trade, Article XX included a Part II. This consisted of three paragraphs corresponding to the three situations noted above. The first situation was reflected in paragraph XX:II(a) of the General Agreement, which provided for measures: 
essential to the acquisition or distribution of products in general or local short supply; 
Provided that any such measures shall be consistent with any multilateral 
arrangements directed to an equitable internat ional distribution of such products or, in 
the absence of such arrangements, with the principle that all contracting parties are 
entitled to an equitable share of the international supply of such products. 
7.213.  Article XX:II of the General Agreement further provided that: 
Measures instituted or maintained under part II of this Article which are inconsistent 
with the other provisions of this Agreement shall be removed as soon as the conditions giving rise to them have ceased, and in any event not later than January 1, 1951; Provided that this period may, with the concurrence of the CONTRACTING 
PARTIES, be extended in respect of the a pplication of any particular measure to any 
                                               
529 GATT Analytical Index: Guide to GATT Law and Practice, 6th edn (WTO, 1995), p. 592 (citing Report 
of the First Session of the London Preparatory Commit tee of the United Nations Conference on Trade and 
Employment, October 1946 , E/PC/T/33, p. 11, para. III.C.1(b). (emphasis added) 
530 Report of the Drafting Committee of the Preparat ory Committee of the United Nations Conference on 
Trade and Employment, March 1947, E/PC/T/34, p. 20. (emphasis added) See also Report of the First Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, November 1946, E/PC/T/33, p. 29. 
531 GATT Analytical Index , p. 593 (citing E/PC/T/A/PV/30 p. 22. (emphasis added) Also referring to 
report at E/PC/T/W/245; discussion at E/PC/T/A/SR/30 p. 3-5, E/PC/T/A/PV/30 p. 21-27, E/PC/T/A/SR/33 p. 1-2, EPCT/A/PV/33 p. 2-7). WT/DS456/R 
 
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  particular product by any particular contracting party for such further periods as the 
CONTRACTING PARTIES may specify.  
7.214.  It was stated during the course of th e discussion at Geneva in 1947 that the phrase 
"general or local short supply" was "understood to include cases where a product, although in 
international short supply, was not necessarily in short supply in all markets throughout the world. 
It was not used in the sense that every country importing a commodity was in short supply otherwise it would not be importing it".
532 
7.215.  At the Fifth Session of the Preparatory Committee, held in 1950, it was decided to prolong 
the validity of all three paragraphs of Article XX:II until 1 January 1952.533 Further decisions 
extended this waiver until 1 January 1954534 and 1 July 1955.535 In the Review Session of 
1954-55, it was agreed that the substance of paragraph (a) of Section II should be retained for 
the time being, subject to review not later than 30 June 1960, but that the remainder of 
paragraph XX:II should be deleted.536 The Report of the Review Working Party on "Other Barriers 
to Trade" notes in this connection: 
In connexion with the proposed suppression of Section II of Article XX, one member of 
the Working Party made the point that the need for the exception in Section II(b) was not limited to shortages subsequent to the wa r, but might be needed in the event of a 
natural catastrophe. The Working Party considered, however, that other provisions of 
the Agreement were adequate to cover the ap plication of restrictions when required 
by any natural catastrophe, and therefore di d not consider it necessary to retain or 
amend the exception in Section II(b).
537 
Section II(a) then became paragraph (j) of Article XX. This change was effected through the 
Protocol Amending the Preamble and Parts II an d III of the General Agreement and entered into 
effect on 7 October 1957. 
 
7.216.  The 1950 Report of the Working Party on "The Use of Quantitative Restrictions for Protective and Other Commercial Purposes"
538 also examined the use of export restrictions for 
products in "short supply" under what was then Article XX:II(a) of the General Agreement: 
The Working Party discussed the proviso … re quiring the observation of the principle 
of equitable shares for all contracting parties in the distribution of the international supply of a product in local or general short supply, and noted that the word 
'equitable' is used in Article XX:II(a) and not the word 'non-discriminatory' which is 
used in Article XIII. 
In respect of this type of restriction, general agreement existed on the following 
statements: 
(a) Apart from situations to which the provisions of Article XX:II(a) are applicable, the 
practice referred to is inconsistent with the provisions of the Agreement. 
(b) Although the requirement of Article XX:II(a) relates to the total international 
supply and not the supply of an individual contracting party, nevertheless if a contracting party diverts an excessive share of its own supply to individual countries (which may or may not be contracting parties) this may well defeat the principle that 
                                               
532 GATT Analytical Index , p. 593 (citing E/PC/T/A/SR.40(2), p. 15). 
533 GATT Analytical Index , p. 593 (citing Decision of 30 November 1950 on Extension of Time-Limit in 
Article XX Part II, GATT/CP/94. Also referring to Report on "Amendment to the Last Paragraph of Part II of 
Article XX", GATT/CP.5/32, II/46, 48, paragraph 7). 
534 GATT Analytical Index , p. 593 (citing II/28). 
535 GATT Analytical Index , p. 593 (citing 2S/27). 
536 GATT Analytical Index , p. 593 (citing L/334, and Addendum, adopted on 3 March 1955, 3S/222, 
p. 230, para. 41). 
537 GATT Analytical Index , p. 593 (citing L/334, and Addendum, adopted on 3 March 1955, 3S/222, 
pp. 230-231, para. 42). 
538 GATT Analytical Index , p.594 (citing GATT/CP.4/33). WT/DS456/R 
 
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  all contracting parties are entitled to an equitable share of the international supply of 
such a product. 
( c )  W h a t  w o u l d  n o t  b e  r e g a r d e d  a s  a n  e q u i t a b l e  s h a r e  i f  i t  w e r e  t h e  r e s u l t  o f  a  
unilateral allotment by a contracting party could not appropriately be defended as 
equitable within the meaning of Article XX:II(a) simply because it had been the 
consequence of an agreement between two contracting parties. 
(d) The determination of what is 'equitable' to all the contracting parties in any given 
set of circumstances will depend upon the facts in those circumstances.539 
7.217.  When the need for paragraph (j) was reviewed at the Sixteenth Session in 1960, the GATT 
Contracting Parties noted "that the contracting parties have resorted to the provisions of this sub-paragraph in a relatively limited number of cases and that it is generally recognized that it would 
be appropriate to retain such provisions to enable contracting parties to meet emergency 
situations which may arise in the future".
540 
7.218.  For the reasons given further above, we co nsider that the ordinary meaning of the terms 
"products in general or local short supply" refers to a situation in which the quantity of available 
supply of a product does not meet demand in the relevant geographical area or market. From the 
foregoing review of supplementary means of interpretation relating to the history of Article XX(j), 
it appears that this interpretation is consistent with the drafting history of this provision, the 
circumstances of its conclusion, and early practice of the GATT Contracting Parties.  
7.219.  Having set forth our understanding of the terms "products in general or local short supply", 
we now proceed to examine two specific interpretative issues that have been raised in this case. 
The first is whether a lack of domestic manufacturing capacity amounts to solar cells and modules 
being in "general or local short supply". The second is whether the risk of a shortage in India amounts to solar cells and modules being "products in general or local short supply" in India.  
7.3.2.3  Whether a lack of domestic manufac turing capacity amounts to solar cells and 
modules being in "general or local short supply"  
7.220.  India argues that its "lack of manufacturing capacity of solar cells and modules amounts to 
a situation of local and general short supply of solar cells and modules in India".
541 India's view "is 
that a situation of 'local or general short supply' occurs when a country does not by itself produce or manufacture a product"
542, in the sense that a "[l]ack of production or manufacture in a market 
creates a situation of short supply".543 In this regard, India submits that "[t]he fact that cells and 
modules can be imported does not negate the fact that they are in short supply in the Indian 
market because of the lack of indigenous production".544  
7.221.  The United States refers to India's acknow ledgment that there is an "adequate availability" 
of solar cells and modules on the international market, notes that India has failed to explain why it 
is unable to avail itself of this supply , and submits that India has therefore failed to establish the factual predicate for invocation of Article XX(j).
545 According to the United States, India's view of 
"products in general or local short supply" as referring to domestically produced products rests on 
a misunderstanding of Article XX(j).546 In the United States' view, "a local short supply exists if 
                                               
539 GATT Analytical Index , p. 594 (citing GATT/CP.4/33 (Sales No. GATT/1950-3, paras. 8-9). 
540 GATT Analytical Index , p. 594 (citing 9S/17). It was decided to retain the paragraph and to review 
the matter again in 1965. At the Twenty-second Session in 1965, the Contracting Parties decided that paragraph (j) "should be retained for the time being" and to review the need for it again in 1970. GATT 
Analytical Index, p. 594 (citing Decision of 15 March 1965, 13S/18). At the Twenty-sixth Session in 1970, the 
Contracting Parties adopted a recommendation of the Council that paragr aph (j) be retained with no provision 
for further review. GATT Analytical Index , p. 594 (citing Decision of 20 February 1970, L/3361, 17S/18. Also 
referring to L/3350). 
541 India's first written submission, para. 213. 
542 India's closing statement at the fi rst meeting of the Panel, para. 9. 
543 India's responses to Panel question Nos. 26 and 29(a). 
544 India's first written submission, para. 236 (subheading (i), second bullet point). 
545 United States' opening statement at the first meeting of the Panel, para. 42. 
546 United States' second written submission, para. 40. WT/DS456/R 
 
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  domestic production plus imports and minus exports is inadequate to meet domestic demand".547 
Thus, where the facts demonstrate that a country is able to acquire the product at issue through importation, there is no "general or local short supply" within the meaning of Article XX(j).
548  
7.222.  Canada, the European Union, and Japan all reject India's interpretation of the terms 
"general or local short supply". Canada considers that "the source (i.e. domestically manufactured 
or imported) of the supply of the products is not relevant".549 The European Union considers that 
"[i]n and of itself … low or even non-existent domestic manufacturing capacity does not mean that 
there is a shortage".550 Japan states that "it is plain that the term 'products' covers both 
domestically manufactured and foreign manufactured imported products".551 
7.223.  Beginning with the text of Article XX(j), we note that the words "products in general or 
local short supply" do not refer to "products of national origin  in general or local short supply". 
Likewise, the term "supply" appears to be neutral as between domestic production and 
importation, in a way that Article XX(j) might not be if it instead referred to "products in general or 
local short production ". The wording of Article XX(j) may thus be contrasted with other provisions 
of the GATT 1994 that contain rules that do rela te, expressly, to the origin of the product 
concerned. For example, Article III:4 speaks of "pro ducts of the territory of any contracting party" 
and "like products of national origin"; Article II:1(b) refers to "products of territories of other 
contracting parties"; Article II:1(c) refers to "products of territories entitled under Article I to 
receive preferential treatment upon importation"; Article XX(g) refers to "domestic production or consumption"; and Article XX(i) speaks of "restrictions on exports of domestic materials". We do not see any comparable language in Article XX(j) that speaks to the source of the products 
concerned, or to the question of where those products are produced. 
7.224.  We consider that the effect of adopting India's interpretation of Article XX(j) would be 
tantamount to interpreting the words "products in general or local short supply", in the first part of 
Article XX(j), as though they meant "products in general or local short production ". We agree with 
India that the terms "supply" and "production" may be said to be "intrinsically linked"552, in the 
sense that the total supply of a product available will generally increase as the total level of 
production in that product increases. In our view, however, it does not follow that these two words 
are interchangeable, such that a product in "short supply" can be equated with a product in "short production". Likewise, we consider that th e words "supply" and "production" are not 
interchangeable in the context of the proviso contai ned in the second part of Article XX(j), which 
provides that measures covered by this general ex ception are subject to th e requirement that they 
"shall be consistent with the principle that all Members are entitled to an equitable share of the international supply  of such products". If these words were treated as interchangeable in that 
context, then the principle that all Members are en titled to an equitable share of the international 
supply  of products in short supply would be tantamount to a far-reaching principle that all 
Members are entitled to an equitable share in the international production  of products in short 
supply. This provides further support for the view that the word "supply" cannot, in the context of 
Article XX(j), be equated with the term "production".  
7.225.  As explained above, we consider that there must be some objective point of reference to 
serve as the basis for an objective assessment of whether there is a "deficiency" or "amount 
lacking" in the "quantity" of a product that is "available".
553 We have concluded that the ordinary 
meaning of the terms "products in general or local short supply" refers to a situation in which the quantity of available supply of a product does not meet demand in the relevant geographical area 
or market.
554 The alternative interpretation advanced by India is that a "lack" of domestic 
manufacturing capacity establishes that a product is in "short supply", irrespective of whether demand for that product can be met through other sources of supply.  
                                               
547 United States' response to Pane l question No. 56(b), para. 44; United States' comments on India's 
response to Panel question No. 65, para. 48. 
548 United States' response to Pa nel question No. 26, para. 38. 
549 Canada's response to Panel question No. 3(a)(ii) to the third parties, para. 13. 
550 European Union's response to Panel question No. 3(a)(ii) to the third parties, para. 15. 
551 Japan's response to Panel question No. 3(a)(ii) to the third parties, para. 12. 
552 India's opening statement at the first meeting of the Panel, para. 49. 
553 See para. 7.205.  above. 
554 See para. 7.207.  above. WT/DS456/R 
 
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  7.226.  In our view, India's alternative interpretation of Article XX(j) does not present any 
objective point of reference to serve as the basis for an objective assessment of whether a product is in "short supply" within the meaning of Article XX(j). India has not adequately explained what would constitute a "lack" of domestic manufacturing capacity amounting to a "short supply" under 
its interpretation of Article XX(j). We note that In dia refers to its need for "sufficient manufacturing 
capacity".
555 I n  e m p h a s i z i n g  t h a t  t h e r e  i s  " s h o r t  s u p p l y "  b y  v i r t u e  o f  i t s  l a c k  o f  d o m e s t i c  
manufacturing capacity, India might be understood to argue that domestic manufacturing is not 
"sufficient", and a product is in "local short supply", if the level of domestic manufacturing capacity 
does not meet the level of domestic demand. However, it appears that this is not India's position, as throughout these proceedings India has stressed that it "does not seek to maximize" either "self-sufficiency" or "self-reliance".
556 India maintains there is no need for the Panel to undertake 
"a quantification of its degree of self-reliance".557 We consider that India has not itself articulated 
what would constitute "sufficient" manufacturing capacity for the purposes of Article XX(j) under its alternative interpretation of this provision. It is also not clear whether India is arguing that it 
would fall under the discretion of each Member concerned to determine what "sufficient" 
manufacturing capacity would be, or whether the point of reference for assessing the level of "sufficient" manufacturing capacity would vary from case-to-case, depending on the policy 
objective being pursued.
558  
7.227.  India states that it "does not have a quantitative tool or a mathematical formula to 
determine with absolute precision as to what would amount to sufficient domestic manufacturing capacity", but "believes that the overall goal specified under the JNNSM Mission Document that 
domestic manufacturing capacity of solar cells and modules should be in the range of 4-5 GW, 
could be considered as reaching the point where such a concern would be addressed".
559 India 
notes that this target is specified under the JNNSM Mission Document.560 However, India does not 
explain why this level of domestic manufacturing capacity would constitute "sufficient" 
manufacturing capacity, whether and if so how it is connected to the level of actual or anticipated domestic demand in India, and whether solar cells and modules would in its view no longer be in 
"short supply" within the meaning of Article XX(j) if it reaches this level of domestic manufacturing 
capacity. Based on the foregoing, we consider that India's interpretation of Article XX(j) is problematic because it does not reflect an object ive point of reference that can be used for the 
purpose of making an objective assessment of whether a product is in "short supply" within the 
meaning of Article XX(j).  
7.228.  In support of its interpretation of Article XX(j), India argues that this provision makes clear 
that there can be a situation of "general or local short supply" within the meaning of the first 
clause even where there is, in the words of the proviso , an "international supply" of that product. 
We understand India to reason from this that, because Article XX(j) envisages that a product could be in "general or local" short supply in a relevant geographical area or market, while at the same 
time there is an "international supply" of that product, it follows by necessary implication that the 
possibility of meeting demand by importing the product, i.e. from the "international" supply, 
cannot mean that there is no "general or local" short supply. We agree with India that Article XX(j) envisages that there could be an "international supply" of a product at the same time that there is 
a short supply of that product in a relevant geographical area or market. However, we do not see 
how this contradicts the conclusion that "products in general or local short supply" refers to products in respect of which the quantity of availa ble supply, from all sources, is not sufficient to 
meet demand. India's argument appears to rest on  the unsupported factual premises that if there 
is an "international supply" of a product, i.e. if a product is generally available on the international market, it follows that this product can be imported into the country or area in question, and also 
that the quantity of the product that can be imported in quantities sufficient to meet demand. The 
                                               
555 India's opening statement at the first meeting of the Panel, para. 37. 
556 India's response to Panel question No. 38(b); In dia's second written submission, paras. 68 and 150; 
India's comments on the United States' response to Panel question No. 74, para. 86. 
557 India's response to Panel question No. 38(b). 
558 India's response to Panel question No. 31. 
559 India's second written submission, para. 119. 
560 India's second written submission, para. 119. See JNNSM Mission Document, (Exhibit IND-1), p. 9 
(stating that "One of the Mission objectives is to take  a global leadership role in solar manufacturing (across 
the value chain) of leading edge sola r technologies and target a 4-5 GW eq uivalent of installed capacity by 
2020, including setting up of dedicated manufacturing capacities for poly silicon material to annually make about 2 GW capacity of solar cells.") WT/DS456/R 
 
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  fact that there is an "international supply" of a pr oduct does not mean that this supply is available 
in all places and regions, as this would seem to  assume perfect and permanent integration across 
all markets and products. As the United States observed in response to a question from India, "a breakdown of local supply chains, or of transnational means of distribution, could lead to a short 
supply of a product in a particular region or lo cality, even as the same product is generally 
available on the international market".
561 Furthermore, assuming for the sake of argument that the 
existence of an "international supply" in a product meant that it was available in all places and 
regions, this would not necessarily mean that there was an ample or large quantity of the product 
in international supply sufficient to meet demand.  
7.229.  Related to the foregoing, India also argues  that "the provision could not have meant that 
short supply will not be considered to exist when products can be imported", because "that would 
mean that in a globalized world, no product can be said to be in short supply since it can always be 
imported", rendering the whole of Article XX(j) redundant.562 We observe that this argument again 
rests on the factual premise that in every country and region in the globalized world, or at least all 
WTO Members, demand for any product can always be fulfilled by relying on imports. For the 
reasons given above, we are not persuaded that this  is the case. Further, the assumption that any 
such supply is necessarily stable and readily accessible, and in a globalized world always available 
in ample or large quantities sufficient to meet dema nd, is contradicted by India's insistence in this 
case on the need for sufficient domestic manufacturing capacity in the face of potential supply-side disruptions. The essence of India's defence under Article XX(j), and Article XX(d), is that "[a]ny dependence on imports brings with it risks associated with supply side vulnerabilities and 
fluctuations"
563, in the sense of "risks of market fluctuations in international supply".564 If it is a 
priori the case that "in a globalized world, no product can be said to be in short supply since it can 
always be imported", then this would mean, a priori , that there are no such risks, and the DCR 
measures are not "essential" to the acquisition or distribution of solar cells and modules. 
7.230.  India also emphasizes that Article XX(j) is not textually or otherwise limited to export  
restrictions, and argues that under the interpreta t i o n  o f  " s h o r t  s u p p l y "  a d v a n c e d  b y  t he  U n i t e d  
States and certain third parties, it is not clear "what would be situations of local or general short 
supply that can justify the imposition of import  restraints".565 We understand India to reason that 
under the United States' interpretation of the terms "products in general or local short supply", measures to redress a situation of "short supply" could only take the form of export restrictions; 
however, the text of Article XX(j), unlike Articles XX(i) and XI:2(a) of the GATT 1994, is not 
confined to measures in the form of export restri ctions; therefore, it must follow that the United 
States' interpretation of "products in general or local short supply" cannot be correct. We are not 
persuaded by such reasoning, because it does not necessarily follow from our interpretation of the 
terms "general or local short supply" that export restrictions are the only type of measures to 
redress a situation of "short supply".
566  
7.231.  India further argues that the terms of this  provision need to be interpreted in light of 
contemporaneous circumstances, following the Appe llate Body's "evolutionary interpretation" of 
Article XX(g) of the GATT 1994 in US – Shrimp .567 According to India, "what is essential to address 
situations of general or local short supply, needs to be seen in the context of contemporary 
                                               
561 United States' response to question No. 2 posed by India, para. 65. 
562 India's first written submission, para. 216. 
563 India's first written submission, paras. 142 and 168. 
564 India's second written submission, para. 72. 
565 India's closing statement at the first meetin g of the Panel, para. 7. (emphasis added) 
566 For example, where the quantity of available su pply of a product does not meet demand for that 
product in a given Member, it is conceivable that this Member might establish a temporary monopoly in respect of the sale of that product as a measure essential to th e distribution of such produc ts within its territory; a 
monopoly could be enforced and given effect through restrictions on both the exportation and the importation 
by private traders of the product conc erned. Likewise, in a situation where the quantity of available supply of a 
product does not meet demand for that product in a gi ven Member, it is conceivable that a Member might, 
even in the absence of a monopoly, take other measures to control both the importat ion and distribution of the 
product in a manner as part of a plan for the rationing of the product.  We do not decide upon the types of 
measures and restrictions that may fall  under Article XX(j) in situations othe r than that before us in the present 
dispute. These hypothetical examples merely serve to il lustrate that it does not necessarily follow from our 
interpretation of the terms "general or local short supply" that export restrictions are the only type of measures 
to redress a situation of "short supply". 
567 India's first written submission, paras. 212, 213, 221, and 236 (subheading (i), first bullet point). WT/DS456/R 
 
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  concerns of a country and the international community".568 India argues that "the spectre of 
scarcity and shortages that may have been relevant only in situations of 'war' or post-war during the 1940s and 50s, needs to be seen in the present times in the context of evolution of circumstances whereby energy security and sust ainable development have moved up the global 
agenda".
569  
7.232.  We recall that in US – Shrimp , the Appellate Body rejected the view that the terms 
"exhaustible natural resources" in Article XX(g) of the GATT 1994 should be interpreted as 
covering only mineral/non-living natural resources. The Appellate Body noted that, "[t]extually, 
Article XX(g) is not limited to the conservation of 'mineral' or 'non-living' natural resources."570 The 
Appellate Body also considered that "the generic term 'natural resources' in Article XX(g) is not 'static' in its content or reference but is rather 'by definition, evolutionary'".
571 We note that 
textually, Article XX(j) is not limited to situations of short supply arising from war or natural 
catastrophe. We therefore agree with India that the scope of Article XX(j) is not limited to post-wartime shortages or shortages arising from natural disasters.
572 In our view, it follows from the 
absence of any textual limitation or qualification that it would cover shortages arising from these 
or any other causes, insofar as it is a shortage of the kind covered by Article XX(j). We further note that in contrast to Article XI:2(a), which refe rs to "essential products", Article XX(j) refers to 
"products" without any such qualification.
573 We therefore consider that the terms "products in 
general or local short supply" includes not only any situation, but also any product, in respect of which the quantity of available supply, from all sources, does not meet demand. Furthermore, we 
agree with India insofar as it suggests that the types of measures that are "essential " to address 
situations of general or local short supply may need to be seen in the context of contemporary 
concerns of a country and the international community.
574 For example, we consider that the types 
of measures that may have existed in 1947 for acquiring or distributing products in short supply 
may not be the same as the types of measures that  exist today for achieving the same purpose. In 
light of the foregoing, we consider that, as the Appellate Body found with respect to the provisions of Article XX(g), the terms "products in general or local short supply" in Article XX(j) are not static 
in their "content or reference", but are "sufficiently generic that what they apply to may change 
over time".
575  
7.233.  However, we do not consider that the applicable legal standard for what it means to be a 
"product in general or local short supply" has changed over time. We consider that, even if a 
consequence of globalization and trade liberalization were the elimination of all product shortages 
in the world, such that the factual circumstance for invoking Article XX(j) would no longer exist and the provision would no longer have any sphere of operation, it would not be open to a treaty 
interpreter to change the applicable legal standard for what it means to be a "product in general or 
local short supply" in the name of "evolutionary interpretation" or ensuring that there would continue to be factual circumstances triggering the application of this provision.
576  
                                               
568 India's response to Panel question No. 29(b). 
569 India's response to Panel question No. 29(b). 
570 Appellate Body Report, US – Shrimp , para. 128. (emphasis original) 
571 Appellate Body Report, US – Shrimp , para. 130. We note that the Appellate Body followed a similar 
approach in China – Publications and Audiovisual Products . In that case, the Appellate Body stated that the 
relevant terms used in China's GATS Schedule were "su fficiently generic that what they apply to may change 
over time", and that GATS Schedules, like the GATS it self and all WTO agreements , "constitute multilateral 
treaties with continuing obligations that WTO Members ente red into for an indefinite period of time". Appellate 
Body Report, China – Publications and Audiovisual Products , para. 396. 
572 The United States also indicates its agreement with this proposition. See United States' response to 
Panel question No. 32, para. 50. 
573 All of the parties and third parties that expressed a view on this point agree that the word "essential" 
does not modify the same terms in Article XI:2 and Article XX(j). By its terms, Article XI:2(a) concerns 
"foodstuffs or other products that are essential" to the Member concerned. In Article XX(j), the issue is 
whether the measure is "essential to the acquisition or distribution" of products in general or local short supply. In our view, whether a measure is "essential to the acquis ition or distribution" of products in short supply is 
separate from the question of whether those products are essential, and is also separate from the question of 
whether the acquisition or distribution of those produc ts is essential to one or more policy objectives. 
574 India's response to Panel question No. 29(b).  
575 Appellate Body Report, US – Shrimp , para. 130. 
576 Sir Gerald Fitzmaurice offered the following observ ations on the possibility of a treaty provision's 
"sphere of operation" being narrowed as a consequenc e of changing factual circumstances: "Treaties not 
 WT/DS456/R 
 
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  7.234.  Based on the foregoing, we consider that the terms "products in general or local short 
supply" refer to a situation in which the quantity of available supply of a product, from all sources, does not meet demand in a relevant geographical area or market. We do not consider that India's manufacturing capacity for solar cells and modules is irrelevant to the question of whether those 
are "products in general or local short supply" in India. Rather, our view is that a product is "in 
general or local short supply" when the quantity of available supply of that product, from all 
sources, does not meet demand in the relevant geographical area or market in question. This 
includes all available sources of supply, includin g both foreign and domestic sources. Domestic 
manufacturing capacity is therefore one variable that must be taken into account to assess whether solar cells and modules are products in shor t supply in India. In other words, our view is 
that a lack of domestic production in the products at issue is a necessary, but not sufficient, 
condition for finding that supply of that product, from all sources, does not meet demand in the 
relevant geographical area or market in question. 
7.235.  We do not consider it necessary to have recourse to supplementary means of 
interpretation to resolve the specific interpre tative issue of whether a lack of domestic 
manufacturing capacity amounts to solar cells and modules being in "general or local short supply". However, we recall that in accordance with Article 32 of the Vienna Convention, we may 
have recourse to supplementary means of interpre tation to confirm the meaning resulting from the 
application of Article 31. We have reviewed suppl ementary means of interpretation related to the 
history of Article XX(j) to confirm our interpre tation. We see nothing in these supplementary 
means of interpretation
577 to support the conclusion that the terms "products in general or local 
short supply" were intended to cover products in respect of which there is merely a lack of 
domestic manufacturing capacity.  
7.236.  For the reasons set forth above, we are not persuaded that India's "lack of manufacturing 
capacity of solar cells and modules amounts to a situation of local and general short supply of solar 
cells and modules in India".578 We conclude that the terms "products in general or local short 
supply" refer to a situation in which the quantity of available supply of a product, from all sources, 
does not meet demand in a relevant geographical area or market. They do not refer to products in 
respect of which there merely is a lack of domestic manufacturing capacity. India has not argued that the quantity of solar cells and modules available from all sources, i.e. both international and domestic, is inadequate to meet the demand  of Indian SPDs or other purchasers.  
7.3.2.4  Whether the risk of a shortage in India amounts to solar cells and modules 
being "products in general or local short supply" in India 
7.237.  We now turn to an alternative argument that was advanced by India in the course of these 
proceedings, which is that the risk of a disruption in imports, and the risk of a resulting shortage of 
solar cells and modules for Indian SPDs, makes these "products in general or local short supply". The question of "risk" is therefore central to India's defence and argumentation in this case. 
According to India, its "abysmally low"
579 level of domestic manufacturing capacity for solar cells 
and modules, and the resulting reliance on imported  solar cells and modules by SPDs, create a risk 
of a shortage; the DCR measures increase domestic manufacturing capacity, and thereby reduce the risk of a disruption in SPDs' access to a continuous and affordable supply of the solar cells and 
modules needed to generate solar power.  
                                                                                                                                               
infrequently assume or base themse lves on the pre-existence of some  fact or right. … There is no a priori  
necessity for any result other than that, if the fact does actually pe rsist, or the right remain in existence, the 
treaty will continue to have relevance and applicability – an d if not, not: that is to say, it (or the particular 
clauses concerned) will to that extent become obsolete  or cease to have any useful sphere of operation." 
G. Fitzmaurice, "The Law and Procedure of the Internat ional Court of Justice 1951-4: Treaty Interpretation and 
Other Treaty Points" The British Year Book of International Law , Vol. 33 (1957) 203, at pp. 233-234. 
577 See paragraphs 7.209.  to 7.217.   
578 India's first written submission, para. 213. 
579 India's first written submission, para. 209. India states that of the total 2775 MW of solar PV 
installed capacity in India, domestically manufactured  cells and modules under the DCR Measures account for 
only 140 MW; over 90% of India's solar PV installations are based on imported cells and modules. India's first 
written submission, para. 271; India's response to Panel question No. 7(a).  See Updated data on 
Manufacturing capacity of Solar Cells and Modules , Ministry of New and Renewable Energy (June 2014), 
(Exhibit IND-29). WT/DS456/R 
 
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  7.238.  In its first written submission, India did not state that solar cells and modules are 
"products in general or local short supply" on the grounds that they are at risk of being in short 
supply; rather, it argued that "India's lack of manufacturing capacity of solar cells and modules 
amounts to a situation of local and general short supply of solar cells and modules in India".580 In 
the context of arguing that the DCR measures "s eek to address general or local short supply of 
solar cells and modules", India stated: 
India's dependence on imported cells and modules makes her vulnerable to the risks 
associated with international supply and market fluctuations. … The DCR Measures 
seek to build manufacturing capacity and skilled human resources that can understand and use the technology associated with solar cells and modules, to redress the issue of local short supply to minimize the risk s of dependence on imported cells and 
modules, and achieve domestic resilience in addressing any supply side disruptions.
581 
In the context of arguing that the DCR measures are "essential" to the acquisition of solar cells 
and modules, India reiterated that: 
Having the ability to manufacture cells and modules is essential to minimizing the 
risks resulting from being solely dependent on imports of such products. This is essential for attaining India's policy objectives of energy security and sustainable 
development.
582  
7.239.  However, in response to a question from the Panel asking India to clarify whether its 
position is that the concept of "products in general or local short supply" covers products at risk of 
being in short supply, India stated that "the concept of 'short supply' under Article XX(j) would 
include situations of existing short supply, as well as any risks to short supply".583 In support of 
this view, India argued that the principle of a ddressing "risks" associated with the other sub-
paragraphs of Article XX has been recognized, including for example halting the spread of risks to 
human life or health under Article XX(b), notwithstanding that those provisions are also, like 
Article XX(j), drafted in the present tense. 584 
7.240.  The United States responded that Article XX( j) is applicable only with respect to products 
that are presently "in short supply", and does not cover preventative or anticipatory measures with 
respect to products that might or could fall into short supply sometime in the future.585 Among 
other things, the United States argued that to the extent that the concept of risk is inherent in 
Article XX(b) of the GATT 1994, it is because that provision explicitly sanctions measures 
necessary " to protect  human, animal, or plant life". Thus, the United States argues that by its 
terms Article XX(b) necessarily envisages pre-emptive measures, that is measures put into place before  risks to human, animal, or plant life come to fruition, whereas the language of Article XX(j) 
("in short supply") justifies only measures taken once a short supply has actually materialized.
586 
7.241.  Canada, the European Union, and Japan all advanced arguments supporting the conclusion 
that the terms "products in general or local short supply" under Article XX(j) do not cover products 
at risk of becoming in short supply.587 Brazil however stated that "an imminent risk of a product 
becoming in short supply may allow for countries to adopt measures", but that those measures would be "less drastic than those required  when a shortage is already under way".
588  
7.242.  In its comments on the United States' responses to the second set of questions from the 
Panel, India clarified its position. First, in response to the United States' argument is that 
Article XX(j) addresses situations of products that are currently in short supply, India stated that it 
                                               
580 India's first written submission, para. 213. 
581 India's first written submission, para. 272. See also para. 236 (subheading (i), third bullet point). 
582 India's first written submission, para. 236 (subheading (i), fourth bullet point). 
583 India's response to Panel question No. 29(c). See also India's second written submission, paras. 87-
91; India's opening statement at the second meeting of the Panel, para. 26. 
584 India's response to Panel question No. 29(c); India's second written submission, paras. 89-91. 
585 United States' opening statement at the second meeting of the Panel, paras. 28-30. See also United 
States' response to Pa nel question No. 57. 
586 United States' opening statement at the second meeting of the Panel, para. 30. 
587 Responses of Canada, the European Union and Japan to Panel question No. 3(a)(i) to third parties. 
588 Brazil's response to Panel question No. 3(a)(i) to the third parties. WT/DS456/R 
 
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  "emphasizes that its fundamental argument is that there is local and general short supply of solar 
cells and modules because of low capacity of domestic manufacturing".589 Second, after expressing 
its disagreement with the United States "that the concept of risks in any form cannot be taken into account under Article XX(j)", and reiterating its argument that the "element of risk is inherent in 
[the] use of any of the provisions of Article XX", India stated: 
India however clarifies that the risks relating to dependence on imports is not relevant 
for an assessment of the threshold issue in Article XX(j) regarding whether there is 
"local or general short supply" in the firs t place. The element of risks relating to 
reliance on imports could assume relevance in the overall assessment of whether a measure is essential in addressing a situation of short supply.
590  
7.243.  The foregoing leads us to understand that when India argues that there is a risk of a 
disruption in imports of affordable solar cells and modules, and of SPDs being unable to acquire 
solar cells and modules as a consequence of their reliance on imported solar cells and modules, it is addressing whether the DCR measures are "essential" to the acquisition of solar cells and 
modules, and not the threshold issue of whether there is "local or general short supply" in the first 
place. With respect to the threshold question of wh ether there is "local or general short supply" in 
the first place, we understand India's sole argume nt to be that "India's lack of manufacturing 
capacity of solar cells and modules amounts to a situation of local and general short supply of solar 
cells and modules in India".
591 We understand India's view to be that the concept of "products in 
general or local short supply" may cover products at risk of being in short supply, but it is not 
arguing, in the present case, that solar cells and modules are "products in general or local short 
supply" on that basis. However, given that India's po sition is not entirely free of ambiguity, we will 
consider this issue in light of Articl es 31 and 32 of the Vienna Convention. 
7.244.  Article XX(j) establishes a general exception for measures "essential to the acquisition or 
distribution of products in general or local short supply". The ordinary meaning of the terms 
"products in … short supply" is of course products that are presently in short supply. The Spanish 
version is also drafted in the present tense, referring to measures "esenciales para la adquisición o 
reparto de productos de los que haya  una penuria general o local"; the French version is also 
drafted in the present tense, referring to measures "essentielles à l'acquisition ou à la répartition de produits pour lesquels se fait sentir  une pénurie générale ou locale". Thus, the English, Spanish 
and French versions of the text, each equally authen tic, are each equally difficult to reconcile with 
the view that this language covers products at risk of being in short supply.  
7.245.  The immediate context of the terms "products in … short supply" does not lend support to 
the view that they cover products at risk of being in short supply. The proviso in the second part of 
Article XX(j) provides that Members may take GATT-inconsistent measures essential to the 
acquisition or distribution of products "in genera l or local short supply", subject to the requirement 
that they "shall be discontinued as soon as the conditions giving rise to them have ceased to 
exist". This implies that the conditions giving rise to the measures already exist. Moreover, insofar 
as there is always some risk of a future shortage of any product, the strict wording of this proviso does not sit well with the view that "products in general or local short supply" includes products at 
risk of being in short supply. 
7.246.  In contrast to the wording of Article XX( j), the text of Article XI:2(a) of the GATT 1994 
expressly refers to export prohibitions temporarily applied "to prevent or relieve critical shortages" of foodstuffs or other products essential to the ex porting Member. Thus, the text of Article XI:2(a), 
unlike the text of Article XX(j), contains express language allowing Members to take preventive or 
anticipatory measures adopted to pre-empt a prod uct shortage. We consider Article XI:2(a) to be 
highly relevant context for the interpretation of Article XX(j) by virtue of the close similarities 
between the other elements of these two provisions . In particular, both provisions allow Members 
to take temporary measures to address product "shortages" and products in "short supply" (which, as noted above, are synonymous); at the same ti me, we consider textual differences between the 
                                               
589 India's response to Panel question No. 57, para. 44. 
590 India's comments on United States' response to Panel question No. 59, para. 59. 
591 India's first written submission, para. 213. WT/DS456/R 
 
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  provisions to be suggestive of differences in "the kinds of shortages" covered under the distinct 
terms of each provision.592  
7.247.  India argued that the principle of addressing "risks" associated with the other sub-
paragraphs of Article XX has been recognized, incl uding for example halting the spread of risks to 
human life or health under Article XX(b), notwithstanding that those provisions are also, like 
Article XX(j), drafted in the present tense. In our view, India's argument that there is a risk of a 
disruption in imports of affordable solar cells and modules, and of SPDs being unable to acquire 
solar cells and modules as a consequence of their reliance on imported solar cells and modules, is 
highly relevant and indeed central to the questi on of whether the DCR measures are "essential to 
the acquisition" of solar cells and modules. To that extent, the treatment of "risks" under Article XX(j) may, as India argues, parallel elemen ts of Article XX(b) and other sub-paragraphs of 
Article XX that are drafted in the present tense. Be yond this, however, we co nsider Article XX(b) to 
be of limited relevance as context to the question of whether "products in general or local short supply" in Article XX(j) may cover products at risk of becoming in short supply. We see no 
language in Article XX(b) that is comparable to the language in Article XX(j) that establishes the 
additional factual predicate, in Article XX(j), that the products being acquired must be "products in 
… short supply".  
7.248.  India argues that it "cannot afford to wait for imports to completely be affected by supply 
side vulnerabilities, before it contemplates the action of setting up domestic manufacturing facilities for solar cells and modules. Manufacturing facilities for solar cells and modules cannot spring up overnight".
593 India has emphasized that its legitimate policy objectives include 
sustainable development, which is part of the object and purpose of the WTO Agreement as 
reflected in its preamble.594 We note that a finding that Article XX(j) does not cover preventative 
or anticipatory measures to acquire or distribute products at risk of becoming (but that not yet 
are) in short supply would not mean that Members cannot take such measures; it would simply 
mean that the general exception set forth in paragraph (j) of Article XX does not cover such measures.  
7.249.  We do not consider it necessary to have recourse to supplementary means of 
interpretation to resolve the specific interpretati ve issue of whether the terms "products in general 
or local short supply" include products at risk of becoming in general or local short supply. H o w e v e r ,  w e  r e c a l l  t h a t  i n  a c c o r d a n c e  w i t h  A r t i c l e  3 2  o f  t h e  V i e n n a  C o n v e n t i o n ,  w e  m a y  h a v e  
recourse to supplementary means of interpretati on to confirm the meaning resulting from the 
application of Article 31. We have reviewed suppl ementary means of interpretation related to the 
history of Article XX(j) to confirm our interpretation. We find nothing in these supplementary 
means of interpretation
595 to suggest that the phrase "products in general or local short supply" 
was intended to cover products at risk of becoming in short supply. We see no mention of such a situation having been made. To the contrary, the provision was originally intended to remain in 
force only for a specified three-year transitional  period to deal with shortages that existed 
following World War II. Furthermore, when the decision was taken to retain the provision 
indefinitely, in what became Article XX(j), it was agreed that the scope of the exception was "not limited to shortages subsequent to the war, bu t might be needed in the event of a natural 
catastrophe".
596 While the text of Article XX(j) refers to product shortages without limitation to 
war, natural catastrophe, or other particular situations, the foregoing does not suggest that the concept of "products in … short supply" was envisaged as covering prospective shortages.  
7.250.  Based on the foregoing, we conclude that  the terms "products in general or local short 
supply" do not cover products at risk of becoming in short supply. We will nonetheless proceed to 
examine the parties' arguments and evidence on the question of whether solar cells and modules 
are at risk of becoming in short supply in India, so  as to assist the Appellate Body in the event that 
our interpretation of the terms "products in genera l or local short supply" is modified or reversed 
on appeal. 
                                               
592 Appellate Body Report, China – Raw Materials , para. 325. As explained further above, the Appellate 
Body treated the concepts of "shortag e" and "short supply" as synonymous. 
593 India's second written submission, para. 87. 
594 India's first written submission, paras. 206, 212, and 221. 
595 See paras 7.209.  to 7.217.   
596 See para. 7.215.  above (citing GATT Analytical Index , p. 593 (citing L/334, and Addendum, adopted 
on 3 March 1955, 3S/222, 230-231, para. 42)). WT/DS456/R 
 
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  7.251.  India has provided evidence on what the possible supply-side disruptions for solar cells and 
modules are, and why India considers that such disruptions can be reasonably expected.597 The 
United States argues that supply-side disruptions are a risk in international and local markets for solar cells and modules, but that India has not demonstrated that imported solar cells and 
modules are particularly subject to supply-side disruptions.
598  
7.252.  India refers to a study by the World Bank to explain "the real and foreseeable risks 
associated with the development of solar energy", which notes that dependence on foreign 
financing for India's solar projects "is fraught with risks arising from mismatches in currency flows, 
as the revenues of the solar projects are all denomi nated in INR while overseas debt servicing is in 
foreign currency".599 The study also indicates "limited or no hedging by developers, which was 
always fraught with risk, as indicated by the unprecedented depreciation of the [Indian rupee] in 
2013, and that this will affect the future risk appetite for such structures".600 The United States 
responds that there is no requirement that India rely on foreign financing with respect to imports of solar cells and modules; to the contrary, it asserts that Indian banks could also provide 
financing to support imports of solar cells and modules, and that the World Bank study cited by 
India notes that the "participation of domestic banks becomes even more critical for the success of the [NSM] program in the future".
601 India replies that the United States ignores the fact that the 
use of imported cells and modules "often comes tied in with the use of foreign financing, as is the 
case with imported cells and modules from the United States".602 
7.253.  India also refers to a recent study on the Global Market Outlook for Photovoltaics, 2013-
2017, which notes that "[solar] PV remains a policy-driven business, where political decisions 
considerably influence the potential market off-take". The study notes how the PV industry went 
through a challenging period in 2011 as well as 2012, with political, market and industry factors affecting business along the whole value chain. Th e study notes the volatility in the PV market 
resulting from the political and investment climate across various countries.
603 India further notes 
that the United States Congressional Research Service in its report on U.S. Solar PV 
Manufacturing: Industry Trends, Global Competition and Federal Support  o b s e r v e s  t h a t  " P V  
manufacturers operate in a dynamic, volatile, and highly competitive global market now dominated 
by Chinese and Taiwanese companies". It also st ates that the "volatile industry trends have 
adversely affected the operations of many solar companies, forcing some to reassess their business models and others to close factories or de clare bankruptcy". The report notes that "[t]en 
firms now control nearly half of global solar module production. Of these, six are based in China, 
two in Japan, one in South Korea and one in the United States." The report further cites another study by the U.S. Department of Energy which no tes that by the end of 2017, 10 of China's major 
producers would cater to 70-80% of China's domestic demand.
604 The United States responds that 
India does not claim that its current ability to acquire and distribute solar cells and modules has been hindered by such "uncertainties" and "volatility".
605 In the United States' view, the evidence 
cited by India shows that supply and prices of sola r cells and modules fluctuate, but not that they 
do so to an unusual or exceptional degree; India's observations about imports show only that the supply and demand also fluctuate, and they indicate nothing about whether imports are "particularly subject to supply disruptions", that is, whether they are more "volatile" than domestic 
sources.
606 With regard to Chinese producers, the Unit ed States submits that India has provided 
no evidence that Chinese exporters would forsake profitable sales to export customers to make 
                                               
597 India's second written submission, paras. 92-100. 
598 United States' response to Panel question No. 58. 
599 India's first written submission, pa ras. 66 and 92 (last bullet point). 
600 India's second written submission, para. 93 (citing Paving the Way for a Transformational Future, 
Lessons from JNNSM Phase I,  Energy Sector Management Assistance Programme, World Bank (2013) 
("Lessons from Phase I "), (Exhibit IND-9)). 
601 United States' response to Pane l question No. 58, para. 53 (citing Lessons from Phase I , (Exhibit 
IND-9)); United States' comments on India's response to Panel ques tion No. 61, para. 43. 
602 India's comments on the United States' resp onse to Panel question No. 58, para. 52. 
603 India's second written submission, para. 94 (citing Global Market Outlook for Photovoltaics , 
2013-2017, European Photovoltaic Industry Association (2013), (Exhibit IND-41)). 
604 India's second written submission, paras. 95-96 (citing Micheala D. Platzer, U.S. Solar Photovoltaic 
Manufacturing: Industry Trends, Gl obal Competition, Federal Support , Congressional Research Service 
(January 27 2015), (Exhibit IND-43)). 
605 United States' response to Pa nel question No. 58, para. 54. 
606 United States' response to Pane l question No. 61; United States' comments on India's response to 
Panel question No. 61, para. 42. WT/DS456/R 
 
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  less profitable sales to domestic customers.607 India replies that these studies are cited as 
"documented acknowledgement by credible sources of the prevailing uncertainties and risks in the international supply of solar cells and modules", which validate its own understanding and reading of the prevailing circumstances where it believes th at it would be unwise and irresponsible for it to 
take availability of imports for granted.
608 
7.254.  India also refers to two press reports to support the assertion that as recently as in 
August 2014, it was reported that the solar industry  is facing a looming shortage of photovoltaic 
panels reversing a two-year slump triggered by a global glut. One of those reports also observes 
that the solar industry is cyclical, and quotes US-based solar manufacturers including SunPower Corp as stating that their panels were in short supply. It also quotes experts as stating that 
regions with heavy price competition such as Latin America will feel a shortage first, while regions 
with stable prices such as the United States and Japan will be prioritized.
609 The United States 
responds that those reports "appear to be overstated and are disputed". The United States submits that PV Magazine  characterized such reports as a "false alarm", and that an analyst 
quoted prominently in the reports cited by Indi a said the "impression given by the [Bloomberg 
reports] are wrong" and that "current projections don't indicate a supply shortage [in 2015]".
610 
India emphasizes that the two press reports that it submitted rely on several credible sources, 
including corporate officers of solar power companies and industry analysts who have made 
statements relating to the possibility of a shor t supply in solar cells and modules, and that the 
article submitted by the United States, which refl ects the view of only one analyst, does not 
invalidate any of the positions taken by these sources.611 The United States comments that the 
two press reports India submitted as exhibits indicate that any short supply is unlikely to affect the 
kinds of large-scale, grid-connected solar power projects at issue in this dispute; instead, off-grid, residential projects will likely take the brunt of any shortage.
612 Moreover, an analyst quoted in 
one of the press reports states that a shortage would not result in an increase in prices for solar 
cells and modules.613  
7.255.  We have concluded that the terms "products in general or local short supply" do not cover 
products at risk of becoming in short supply. Ho wever, even assuming for the sake of argument 
that the concept of "products in general or local short supply" in Article XX(j) could be interpreted 
to include products at risk of being in short supply, we consider that only imminent risks of such shortage would be covered.  
7.256.  First, we consider that because Article XX(j) refers to "products in … short supply" in the 
present tense, a risk of a shortage could not be a remote possibility, or too far removed from the 
present time, in order to fall even within the broadest possible interpretation of these terms. 
7.257.  Second, as relevant context, we observe that in China – Raw Materials , the Appellate Body 
interpreted the words "to prevent … critical shortages" in Article XI:2(a) as encompassing shortages that, while not yet existing, were "imminent": 
Article XI:2(a) allows Members to apply prohibitions or restrictions temporarily in 
order to "prevent or relieve" such critical shortages. The word "prevent" is defined as 
"[p]rovide beforehand against the occurrence of (something); make impracticable or impossible by anticipatory action; stop from happening".
614 The word "relieve" means 
"[r]aise out of some trouble, difficulty or danger; bring or provide aid or assistance 
                                               
607 United States' comments on India's resp onse to Panel question No. 61, para. 43. 
608 India's comments on the United States' resp onse to Panel question No. 58, para. 53. 
609 India's second written submission, para. 97 (citing Laura Lorenzetti, Solar panel shortage looms even 
as manufacturers in vest in production , Fortune (19 August 2014), (Exhibit IND-49)). 
610 United States' response to Panel ques tion No. 58, para. 55 (citing Edgar Meza, False alarm: No panel 
shortage coming , PV Magazine  (27 August 2014), (Exhibit USA-39)). 
611 India's response to Panel question No. 62, paras. 73-74 (citing Ehren Goossens, Solar Boom Driving 
First Global Panel Shortage Since 2006 , Bloomberg Business (18 August 2014), (Exhibit IND-48); and Laura 
Lorenzetti, Solar panel shortage looms even as manufacturers invest in production , Fortune (19 August 2014), 
(Exhibit IND-49)). 
612 United States' comments on India's resp onse to Panel question No. 62, para. 45. 
613 United States' comments on India's resp onse to Panel question No. 62, para. 45. 
614 Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 2341. WT/DS456/R 
 
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  to".615 We therefore read Article XI:2(a) as providing a basis for measures adopted to 
alleviate or reduce an existing critical shortage, as well as for preventive or 
anticipatory  measures adopted to pre-empt an imminent  critical shortage.616 
7.258.  Thus, the Appellate Body understood the express reference in Article XI:2(a) to measures 
"to prevent" critical shortages of essential produc ts as providing a basis to adopt measures to pre-
empt "an imminent" critical shortage. Assuming for the sake of argument that Article XX(j) also provides a basis to adopt preventive measures, we consider that, in light of the terms used in 
Articles XI:2(a) and XX(j), the standard applicable under Article XX(j) must be at least equivalent 
to that of "imminent" shortage as has been determ ined to be applicable for Article XI:2(a). We are 
mindful of the fact that Article XI:2(a) applies to "critical shortages", and that the kinds of shortages that fall within the scope of Article XI:2(a) are thus more narrowly circumscribed than 
those falling within the scope of Article XX(j).
617 We do not consider that this would justify the 
application of a lower standard of risk for preventative actions under Article XX(j), as compared with the "imminent" standard under Article XI:2(a).  In this regard, the Appellate Body did not link 
the "imminent" standard to the fact that the kinds of shortages falling within the scope of 
Article XI:2(a) are confined to "critical shortages". Moreover, Articles XX(j) and XI:2(a) both deal with the same subject matter, namely measures taken to address product shortages. Indeed, 
given that the text of Article XX(j) contains no similar language to that found in Article XI:2(a) 
allowing Members to take preventive or anticipatory measures adopted "to prevent" critical shortages of a product, and given that the scope  of Article XX(j) extends to any products in 
"general or local short supply" whereas the scope of the derogation in Article XI:2(a) covers only 
those products that are "essential to the exporting Member", we fail to see how a lower and more 
permissive standard of risk could apply to preventative actions under Article XX(j) as compared with Article XI:2(a). In our view, assuming for the sake of argument that the terms "products in 
general or local short supply" can be read to includ e products at risk of being in short supply, at 
minimum this same standard of an "imminent" shortage would have to apply with respect to this element of Article XX(j).  
7.259.  Therefore, on the basis of the wording of  the Article XX(j) and taking into account the 
Appellate Body's interpretation of Article XI:2 (a) of the GATT 1994, which for the reasons above 
we consider highly relevant context for the interpretation of Article XX(j), we conclude that if the terms "products in general or local short supply" can be read to include products at risk of being in 
short supply, this could only extend to an "imminent" shortage.618 With regard to the standard of 
an "imminent" shortage, India submits that "this is  the threshold that India is seeking to apply in 
its submissions".619  
7.260.  This leads us to elaborate on what would have to be shown to establish the existence of an 
"imminent" shortage. The  word "imminent" is defined to mean  "impending, soon to happen".620 We 
further note that where the covered agreements require that harm be "imminent", they typically 
explain further that the harm be "clearly foreseen" and not a matter of "conjecture or remote 
possibility".621 As regards the use of the word "imminent" as a standard of probability in a different 
                                               
615 Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2007), Vol. 2, p. 2522. 
616 Appellate Body Report, China – Raw Materials , para. 327. 
617 Appellate Body Report, China – Raw Materials , para. 325. 
618 We see no basis for applying the same standard of imminent risk, and ther efore do not apply this 
same standard, in the context of assessing whether the DCR measures are designed to secure compliance with laws or regulations within the meaning of Article XX(d ) of the GATT 1994, or are "essential" or "necessary" 
within the meaning of Articles XX(j) and XX(d). 
619 India's response to Panel question No. 59, para. 62. 
620 Shorter Oxford English Dictionary , 5th edn., W.R. Trumble, A. Stevenson (eds.) (Oxford University 
Press, 2002), Vol. 1, p. 1323. 
621 Article 3.7 of the Anti-Dumping Agreement, deal ing with threat of material injury from dumped 
imports, provides that the change in circumstances whic h would create a situation of injury "shall be based on 
facts" and "must be clearly foreseen  and imminent", and not "merely on allegation, conjecture or remote 
possibility". See also Article 15.7 of the SCM Agreement, and Article 4.1(b) of the Sa feguards Agreement. We  
observe that Article XII:2(a)(i) of the GATT 1994, concer ning balance of payments measures, provides that 
import restrictions may be taken to "forestall the immine nt threat of, or stop to", a serious decline in its 
monetary reserves; and Article 50 of th e TRIPS Agreement requires that nati onal judicial authorities have the 
authority to order effective provisional measures to prev ent an infringement of intellectual property rights from 
occurring where there is "a sufficient degree of ce rtainty …. that such in fringement is imminent". WT/DS456/R 
 
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  context, the Appellate Body has expressed the view  that "the use of this word implies that the 
anticipated 'serious injury' must be on the very verge of occurring ".622 Thus, an "imminent" event 
passes a higher threshold than one of mere possibility. 
7.261.  We consider that the evidence provided by India establishes that, in the absence of any 
measures taken by SPDs or India to ensure continued access to foreign solar cells and modules, 
and simply taking their continued availability "for granted"623, there is some risk of disruption in 
the supply of affordable foreign solar cells and modules to India.  
7.262.  However, we find it significant that India has not identified any actual disruptions in 
imports of solar cells and modules to date, whether stemming from "the unprecedented 
depreciation in [Indian rupee] in 2013" or otherwise. In this regard, India states that "shortfall and uncertainties in the import of solar cells and modules has occurred before in 2006, followed by a 
global glut, and then a situation of global shortfall as recently as 2014".
624 Leaving aside what the 
evidence shows about the nature and extent of those "shortfalls", India has directed us to no evidence of any SPDs in India having experienced an actual disruption in the supply of affordable 
foreign solar cells and modules.  
7.263.  In addition, our assessment is that the indi vidual pieces of evidence  provided by India do 
not establish any imminent risk of SPDs in India encountering a disruption in the supply of 
affordable foreign solar cells and modules to India. In this regard, it appears to us that the 
passages in the World Bank study cited by India relate to "participation of domestic banks" in funding projects under the National Solar Mission, not to risks that imports of solar cells or modules could be disrupted, and the relevance of this is therefore unclear. Furthermore, while the 
Global Market Outlook for Photovoltaics  does state that solar PV remains "a policy-driven 
business", it does not speak to whether imports of solar cells or modules in India could be disrupted, and the relevance of this information is therefore unclear. In addition, the various 
references to this industry being "volatile" and "cyclical" do not suffice to establish that a shortage 
of solar cells or modules in India is either likely or imminent. Finally, the press reports submitted by India quote industry experts as stating that if there is a shortage, the "large-scale utility 
projects are going to be where the modules go", and the shortage "would be on the residential 
side". In this case, India argues that the DCR measures are aimed at the acquisition of solar cells and modules by SPDs that are engaged in solar po wer generation, i.e. large-scale utility projects, 
not residential consumers.
625 Thus, leaving aside the weight that should be given to these press 
reports as evidence626, and also the weight that should be given to the conflicting press report 
subsequently submitted by the United States627, we question their relevance to the specific factual 
issues before us. These reports suggest that, even in the event of a shortage in the international 
supply of solar cells or modules, large-scale utility projects like Indian SPDs (as distinguished from 
residential customers) may not be affected.  
7.264.  Assuming for the sake of argument that products at risk of being in "short supply" could be 
"products in general or local short supply" within the meaning of Article XX(j), which we have 
found  is not the case, we consider that only imminent risks of shortage would be potentially 
covered. Accordingly, we have applied the standard  of "imminent" risk in the context of assessing 
whether solar cells and modules are "products in ge neral or local short supply" within the meaning 
of Article XX(j).628 Based on our review of India's evidence, we conclude that India has not 
                                               
622 Appellate Body Report, US – Lamb , para. 125. (emphasis added) 
623 India's comments on the United States' resp onse to Panel question No. 58, para. 53. 
624 India's comments on the United States' resp onse to Panel question No. 58, para. 48. 
625 India's first written submission, paras. 229 and 236 (subheading (ii), first bullet), and India's opening 
statement at the first meeting of the Panel, para. 50 (i n each instance stating that "the DCR Measures are 
essential to the acquisition of solar cells and modules by SPDs that are engaged in solar power generation"). 
626 While press reports are not per se  unreliable or inadmissible, panels have treated them with a certain 
degree of caution. As one panel rece ntly observed: "Previous panels ha ve taken into account information 
contained in articles published in newspapers or magazi nes. In some cases, however, the probative value of 
the information contained in press articles has been rejected; for exampl e, because the information was 'too 
little and too random', it consisted of a 'single, anecdotal newspaper article', or it was limited to foreign press or originated from non-authoritative sources of information on the country at issue." Panel Reports, Argentina 
– Import Measures , para. 6.69. 
627 Edgar Meza, False alarm: No panel shortage coming , PV Magazine  (27 August 2014), (Exhibit 
USA-39). 
628 See paragraph 7.258.  and fn 618 above. WT/DS456/R 
 
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  established any imminent risk of a disruption in supply of foreign solar cells and modules to India 
SPDs. We therefore find that the risk of solar ce lls and modules becoming products in general or 
local short supply in India does not amount to solar cells and modules being "products in general or local short supply" in India within the meaning of Article XX(j). 
7.3.2.5  Conclusion 
7.265.  For the reasons set forth above, we find that solar cells and modules are not "products in 
general or local short supply" in India within the meaning of Article XX(j) of the GATT 1994. 
Accordingly, we find that the DCR measures do not involve the acquisition of "products in general 
or local short supply" in India, and are therefore not justified under the general exception in Article XX(j) of the GATT 1994.
629 
7.3.3  Whether the DCR measures are measures "to secure compliance with laws or 
regulations" within the me aning of Article XX(d)  
7.3.3.1  Introduction 7.266.  Article XX(d) establishes a general exception for measures: 
necessary to secure compliance with laws or regulations which are not inconsistent 
with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II 
and Article XVII, the protection of patents, trade marks and copyrights, and the 
prevention of deceptive practices 
7.267.  There is a considerable body of jurisprudence under Article XX(d).
630 It is now well 
established that Article XX(d) contains two cumulative requirements: first, it must be shown that 
the challenged measure is "designed to 'secure compliance' with laws or regulations that are not 
themselves inconsistent with some provision of the GATT 1994"; second, it must be shown that the measure is "necessary" to secure such compliance.
631 The responding party has the burden of 
demonstrating that both of these elements are met.632 Demonstrating that a measure is designed 
to secure compliance with laws or regulations which are not inconsistent with the GATT 1994 entails demonstrating that there are "laws or regulations", that they are "not inconsistent with the 
provisions of" the GATT 1994, and that the measures at issue are measures "to secure 
compliance" with those laws and regulations. These elements are cumulative.
633 
                                               
629 Having found that solar cells and modules are not "products in general or local short supply" in India, 
we do not consider it necessary to examine whether the DCR measures involve the "acquisition or distribution" 
of those products. 
630 GATT Panel Reports, US – Spring Assemblies , 1982, paras. 50-61; Canada – FIRA , 1983, 
paras. 5.19-5.20; Japan – Agricultural Products I , 1987, paras. 5.2.2.3 and 6.2; US – Section 337 Tariff Act , 
1998, paras. 5.22-5.35; EEC – Parts and Components , 1990, paras. 5.12-5.18; US – Tuna (Mexico) , 1991, 
paras 5.39-5.40; US – Malt Beverages , 1992, paras. 5.40-5.43; 5.51-5.52; US – Taxes on Automobiles , 1994, 
para. 5.67; and US – Tuna (EEC) , 1994, paras. 5.40-5.41; WTO Panel Reports, US – Gasoline , paras. 6.30-
6.34; Canada – Periodicals , paras. 5.6-5.11; Korea – Various Measures on Beef , paras. 645-685; Argentina –
Hides and Leather , paras. 11.290-11.331; Canada – Wheat Exports and Grain Imports , paras. 6.220-6.251, 
6.298-6.320; EC – Trademarks and Geograph ical Indications (Australia) , paras. 7.328-7.341; Dominican 
Republic – Import and Sale of Cigarettes , paras. 7.203-7.232; Mexico – Taxes on Soft Drinks , paras. 8.162-
8.204; Brazil – Retreaded Tyres , paras. 7.381-7.389; US – Customs Bond Directive , paras. 7.286-7.312; US – 
Shrimp (Thailand) , paras. 7.164-7.192; China – Autos Parts , paras. 7.277-7.365; Colombia – Ports of Entry , 
paras. 7.482-7.620; Thailand – Cigare ttes (Philippines) , paras. 7.749-7.758; Appellate Body Reports, Korea – 
Various Measures on Beef , paras. 152-185; Dominican Republic – Import  and Sale of Cigarettes , paras. 57-73; 
Mexico – Taxes on Soft Drinks , paras. 58-80; US – Shrimp (Thailand) / US – Customs Bond Directive , paras. 
304-319; Thailand – Cigarettes (Philippines) , paras. 174-181. 
631 Appellate Body Report, Korea – Various Measures on Beef , para. 157. 
632 Appellate Body Report, Korea – Various Measures on Beef , para. 157. 
633 See, Panel Report, Colombia – Ports of Entry , para. 7.514 (citing Panel Reports, US – Shrimp 
(Thailand) , para. 7.174; US – Customs Bond Directive , para. 7.295). Our review of prior panel and Appellate 
Body reports leads us to conclude that, while these elements are cumulative, there is no requirement to 
analyse these elements separately, as opposed to being taken together as pa rt of a holistic analysis of whether 
the challenged measure is a measure "to 'secure compliance' with laws or regulations that are not themselves 
 WT/DS456/R 
 
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  7.268.  In this case, India argues that the DCR measures are justified under Article XX(d) because 
they are "integral to its compliance with both domestic and international law obligations to ensure ecologically sustainable growth while addressing India's energy security challenge, and ensuring 
compliance with its obligations relating to climate change".
634 According to India, these obligations 
are reflected in four international instruments, and four domestic instruments.635  
7.3.3.2  Relevant provisions of the internat ional and domestic instruments identified by 
India  
7.269.  India submits that its "international law obligations … embodied in various international 
instruments" are: (a) the preamble of the WT O Agreement; (b) the United Nations Framework 
Convention on Climate Change; (c) the Rio Declaration on Environment and Development; and (d) the United Nations General Assembly Resolution  adopting the Rio+20 Document: The Future We 
Want, adopted by the United Nations General Assembly in 2012.
636  
7.270.  Beginning with the preamble to the WTO Ag reement, India refers to the elements of the 
first recital that recognize "that the objective of sustainable development will be pursued by 
countries, guided by their own needs and concerns depending on their levels of economic 
development".637 The first recital of the preamble to the WTO Agreement reads: 
Recognizing that their relations in the fiel d of trade and economic endeavour should 
be conducted with a view to raising standard s of living, ensuring full employment and 
a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the 
optimal use of the world's resources in accordance with the objective of sustainable 
development, seeking both to protect and preserve the environment and to enhance 
the means for doing so in a manner consistent with their respective needs and concerns at different levels  of economic development 
7.271.  India submits that its "international law obligations" are also embodied in the United 
Nations Framework Convention on Climate Change (UNFCCC).
638 In its first written submission, 
India explained that the UNFCCC "specifically recognizes that the problem of climate change 
cannot be looked at in isolation, and that there are close inter-linkages between social economic 
development and measures to address climate change".639 According to India, the UNFCCC 
"further recognizes that the range of policy choices available will depend on the specific context of 
each country"640, and India argues that it recognizes the following six principles: first, that "the 
ultimate objective is to achieve stabilization of greenhouse gas concentrations in a manner that 
enables economic development to proceed in a sustainable manner"641; second, that 
                                                                                                                                               
inconsistent with some provision of the GATT 1994". Insofar as these elements are analysed separately, we 
see no prescribed sequence. We consider that the manner  in which a panel analyses these elements should be 
informed by the particular  circumstances of case. 
634 India's first written submission, para. 240; India' s opening statement at the first meeting of the 
Panel, para. 54; India's opening statement at the second meeting of the Panel, para. 35. 
635 As elaborated in our findings belo w, a central issue in this case is whether the materials identified by 
India are "laws or regulati ons" within the meaning of Article XX(d ). In referring to these materials as 
"instruments", our intention is to adopt a nomenclatu re that is neutral with respect to that issue. 
636 India's first written submission, para. 240; India' s opening statement at the first meeting of the 
Panel, para. 54; India's response to Panel question No. 34(a); India's second written submission, para. 137; 
India's response to Panel question No. 66, para. 82. When  listing the relevant domestic instruments in its first 
written submission and opening statement at the first meeting of the Panel, Indi a also referred to "the 
Environment Protection Act". India offe red no further elaboration. In its re sponse to Panel question No. 34(a), 
which asked India to identify "the specific provisions of India's laws and regulations with which the measures at issue are designed to secure compliance", India made no reference to "the Envi ronment Protection Act".  
Accordingly, we do not understand India to be arguing that the Environment Protection Act is one of the "laws or regulations" with which the DCR measur es are designed to secure compliance.   
637 India's first written submission, para. 206; India's response to Panel question No. 34(a). 
638 United Nations Framework Convention on Climate Change, done at New York, 9 May 1992,  1771 
UNTS 107; S. Treaty Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849 (1992) ("UNFCCC") (Exhibit IND-3). 
639 India's first written submission, para. 178. 
640 India's first written submission, para. 178. 
641 India's first written submission, para. 178 (citing Article 2 of the UNFCCC). WT/DS456/R 
 
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  "environmental standards, management objectives  and priorities should reflect the environment 
and development context to which they apply, and that standards applied by some countries may be inappropriate and of unwarranted economic and social cost, to other countries, in particular, developing countries"
642; third, that "responses to climate change should be coordinated with 
social and economic development in an integrated manner with a view to avoiding adverse impacts 
on the latter (i.e., on social and economic development), taking into full account the legitimate priority needs of developing countries, for th e achievement of sustained economic growth"
643; 
fourth, that "Parties have the right to promote sustainable development, and that the policies and 
measures to protect the climate system should be appropriate for the specific conditions of each Party and integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change"
644; fifth, that 
"developing countries need access to resources to achieve sustainable social and economic 
development, for which, they would need to apply new technologies on terms that make such application economically and socially beneficial"
645; and sixth, that "various actions to address 
climate change can be justified economically in their own right".646  
7.272.  According to India, Articles 4(1)(b) and 4(1)(f) of the UNFCCC are the specific provisions 
with which the measures at issue are designed to secure compliance.647 Articled 4 is entitled 
"Commitments", and reads in relevant part: 
All Parties, taking into account their common but differentiated responsibilities and 
their specific national and regional development priorities, objectives and circumstances, shall: 
… 
(b) Formulate, implement, publish and regularly update national and, where 
appropriate, regional programmes containing measures to mitigate climate change by 
addressing anthropogenic emissions by sources and removals by sinks of all 
greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change; 
… 
(f) Take climate change considerations into account, to the extent feasible, in their 
relevant social, economic and environmen tal policies and actions, and employ 
appropriate methods, for example impact assessments, formulated and determined 
nationally, with a view to minimizing advers e effects on the economy, on public health 
and on the quality of the environment, of pr ojects or measures undertaken by them to 
mitigate or adapt to climate change; 
India also refers to Article 3(4)  of the UNFCCC, and states that the DCR measures are designed to 
secure compliance with "the ov erall commitments" under the UNFCCC.
648 Article 3 is entitled 
"Principles", and reads in relevant part: 
 
In their actions to achieve the objective of the Convention and to implement its 
provisions, the Parties shall be guided, inter alia, by the following: 
… 
4. The Parties have a right to, and should, promote sustainable development. 
Policies and measures to protect the climate system against human-induced change 
                                               
642 India's first written submission, para. 178 (citing the 10th recital of the preamb le of the UNFCCC). 
643 India's first written submission, para. 178 (21st recital of the Preamble and Article 4.1 of the 
UNFCCC). 
644 India's first written submission, para. 178 (citing Article 3.4 of the UNFCCC) (emphasis omitted). 
645 India's first written submission, para. 178 (citing the 22nd recital of the preamb le of the UNFCCC). 
646 India's first written submission, para. 178 (citing 17th recital of the preamble of the UNFCCC). 
647 India's response to Panel question No. 34(a). 
648 Ibid. WT/DS456/R 
 
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  should be appropriate for the specific conditions of each Party and should be 
integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change. 
7.273.  India also refers to the Rio Declaration on Environment and Development, adopted by the 
United Nations General Assembly in 1992.
649 India did not refer to any particular provision of the 
Rio Declaration in its first written submission, or in response to a question from the Panel asking India to identify the specific provisions of India's laws and regulations with which the measures at 
issue are designed to secure compliance.
650 Rather, India stated that its "notion of sustainable 
development is also informed by the obligations that it has undertaken under" the Rio Declaration.
651 We note that the concept of sustainable development is expressly mentioned in 
Principles 1, 4, 5, 7, 8, 9, 12, 20, 21, 22, 24, and 27 of the Rio Declaration.652  
7.274.  India also refers to the United Nations General Assembly Resolution adopted in connection 
with the Rio+20 Outcome Document "The Future We Want", which was adopted by the United 
Nations General Assembly in 2012.653 India states that this instrument "emphasizes the need to 
mainstream sustainable development at all levels, integrating economic, environmental, social 
aspects and recognizing their interlinkages so as to achieve sustainable development in all its dimensions", and that it "also emphasizes the need  for sustainable energy services and the right of 
countries to determine the energy mix ba sed on their development aspirations".
654 India clarified 
that it is "the specific obligations embodied in paragraphs 3, 4 and 127 of the Rio+20 Resolution with which India seeks to secure compliance".
655 These read: 
3. We therefore acknowledge the need to further mainstream sustainable 
development at all levels, integrating economic, social and environmental aspects and 
recognizing their interlinkages, so as to achieve sustainable development in all its dimensions. 
4. We recognize that poverty eradication, changing unsustainable and promoting 
sustainable patterns of consumption and production and protecting and managing the natural resource base of economic and social development are the overarching 
objectives of and essential requirements for sustainable development. We also 
reaffirm the need to achieve sustainable development by promoting sustained, inclusive and equitable economic growth, creating greater opportunities for all, reducing inequalities, raising basic standards of living, fostering equitable social 
development and inclusion, and promot ing the integrated and sustainable 
management of natural resources and ecosystems that supports, inter alia, economic, social and human development while facilitating ecosystem conservation, regeneration 
and restoration and resilience in the face of new and emerging challenges. 
… 127. We reaffirm support for the implementati on of national and subnational policies 
and strategies, based on individual na tional circumstances and development 
aspirations, using an appropriate energy mix to meet developmental needs, including through increased use of renewable energy sources and other low emission technologies, the more efficient use of energy, greater reliance on advanced energy 
technologies, including cleaner fossil fuel technologies, and the sustainable use of 
traditional energy resources. We commit to promoting sustainable modern energy services for all through national and subnational efforts, inter alia, on electrification 
and dissemination of sustainable cooking and heating solutions, including through 
collaborative actions to share best practice s and adopt policies, as appropriate. We 
                                               
649 Rio Declaration on Envi ronment and Development  (1992), (Exhibit IND-35). 
650 India's first written submission, para. 240; India's response to Panel question No. 34(a). 
651 India's response to Panel question No. 34(a). 
652 Rio Declaration on Envi ronment and Development  (1992), (Exhibit IND-35). 
653 United Nations General Assembly Resolution A/RES/66/288 (adopted on 27 July 2012) ("Rio+20 
Document: The Future We Want"), (Exhibit IND-28). See India's first written submission, para. 204. 
654 India's response to Panel question No. 34(a). 
655 India's comments on the United States' response to Panel question No. 69(c), para. 77. WT/DS456/R 
 
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  urge governments to create enabling environments that facilitate public and private 
sector investment in relevant and needed cleaner energy technologies. 
7.275.  India also submits that its "domestic … obligations to ensure ecologically sustainable 
growth while addressing India's energy security  challenge, and ensuring compliance with its 
obligations relating to climate change" are embodied in: (a) the Electricity Act "read with"; (b) the 
National Electricity Policy; (c) the National Electricity Plan; and (d) the National Action Plan on Climate Change.
656  
7.276.  India identifies Section 3 of the Electricity Act of 2003 as the relevant provision of this 
instrument. Section 3 mandates the development of a National Electricity Policy and a National Electricity Plan.
657 Section 3 thus establishes the legal basis for the development of the Policy and 
the Plan (discussed below). It identifies the entities involved in the periodic preparation, 
publication, and review of the National Electricity Policy and the National Electricity Plan. It does 
not address the content or substance of either the National Electricity Policy or the National Electricity Plan, other than to state that the Policy to  be prepared from time to time will be "based 
on optimal utilisation of resources such as coal, natural gas, nuclear substances or materials, 
hydro and renewable sources of energy".
658  
7.277.   In response to a question from the Panel as king India to identify the specific provisions of 
India's laws and regulations with which the measures at issue are designed to secure compliance, 
India reiterated that "[t]he Electricity Act mandates the formation of the National Electricity Policy and the National Electricity [Plan]".
659 We understand India to be referring to Section 3 of the 
Electricity Act, which reads: 
3. (1) The Central Government shall, from time to time, prepare the national 
electricity policy and tariff policy, in consultation with the State Governments and the Authority for development of the power system based on optimal utilisation of 
resources such as coal, natural gas, nuclear substances or materials, hydro and 
renewable sources of energy. 
(2) The Central Government shall publish National Electricity Policy and tariff policy 
from time to time. 
(3) The Central Government may, from time to time, in consultation with the State 
Governments and the [Central Electricity Authority], review or revise, the National Electricity Policy and tariff policy referred to in sub-section (1). 
(4) The [Central Electricity Authority] shall prepare a National Electricity Plan in 
accordance with the National Electricity Policy and notify such plan once in five years: 
Provided that the [Central Electricity Authority] in preparing the National 
Electricity Plan shall publish the draft National Electricity Plan and invite suggestions 
and objections thereon from licensees, generating companies and the public within such time as may be prescribed: 
Provided further that the [Central Electricity Authority] shall - 
(a) notify the plan after obtaining the approval of the Central Government; (b) revise the plan incorporating therein the directions, if any, given by the 
Central Government while granting  approval under clause (a). 
                                               
656 India's first written submission, para. 240. 
657 Electricity Act, (Exhibit USA-20). 
658 Electricity Act, (Exhibit USA-20), Section 3(1). 
659 India's response to Panel question No. 34(a). WT/DS456/R 
 
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  (5) The [Central Electricity Authority] may review or revise the National Electricity 
Plan in accordance with the National Electricity Policy.660 
7.278.  The National Electricity Policy was announced in 2005.661 In its first written submission, 
India states that the Policy "emphasizes that electr icity is an essential requirement for all facets of 
our life, and constitutes a basic human necessity"662, and observes that electricity "is the critical 
infrastructure on which the socio-economic development of the country depends, and that it is one of the key drivers for rapid economic growth and poverty alleviation".
663 India highlights that the 
National Electricity Policy lays down guidelines for "the accelerated development of the power 
sector", for providing "supply of electricity to all areas", and for "protecting the interests of consumers and other stakeholders keeping in view  availability of energy resources, technology 
available to exploit these resources, economics of generation using different resources, and energy 
security issues".
664 India notes that the National Electricity Policy recognizes that "considering 
electricity in itself cannot be stored, demand and supply of electricity, as a commodity needs to be continuously balanced".
665  
7.279.  According to India, paragraph 5.12.1 of th e National Electricity Plan is "[t]he specific 
obligation" with which the measures at issue are designed to secure compliance.666 The National 
Electricity Policy is a 16-page document addressi ng 13 broad issues, one of which is "Cogeneration 
and Non-Convention Energy Sources". Part 5.12 of the National Electricity Policy bears a title of 
the same name, and consists of three paragraphs. Paragraph 5.12.1 reads: 
Non-conventional sources of energy being th e most environment friendly there is an 
urgent need to promote generation of electricity based on such sources of energy. For 
this purpose, efforts need to be made to reduce the capital cost of projects based on 
non-conventional and renewable sources of energy. Cost of energy can also be reduced by promoting competition within such projects. At the same time, adequate 
promotional measures would also have to be taken for development of technologies 
and a sustained growth of these sources.
667 
7.280.  The next domestic instrument identified by India is the National Electricity Plan.668 As set 
forth above, the Electricity Act mandates the Centra l Electricity Authority to develop, and notify, a 
National Electricity Plan every five years. In its first written submission, India notes that the National Electricity Policy further mandates that th is Plan be developed "keeping in mind the fuel 
choices based on the economy, energy se curity and environmental considerations".
669 India 
highlights that the National Electricity Plan for 2012 recognizes that "sustainable development is 
the ultimate goal which encompasses economic development, maintaining environmental quality and social equity".
670 India observes that in this context the Plan emphasizes "the importance and 
relevance of the development of clean and green po wer based on the choice of appropriate fuels/ 
technology for renewable energy development projects".671  
7.281.   The National Electricity Plan is a 31-page document, divided into 14 chapters. Chapter 5, 
entitled "Generation Planning", contains an introduction followed by sections on "Options for Power 
Generation in India" (5.1), "Principles of Genera tion Planning" (5.2), "Planning Tools – Details of 
Planning Models" (5.3), "Planning Approach" (5.4),  and a "Conclusion". Section 5.2 on "Principles 
of Generation Planning" is divided into three subsections, including "Sustainable Development" 
(5.2.1), "Operational Flexibility and Reliability" (5.2.2), and "Efficient Use of Resource" (5.2.3). 
                                               
660 Electricity Act, (Exhibit USA-20), Section 3. 
661 National Electricity Policy, Ministry of Power (12 February 2005) ("National Electricity Policy"), 
(Exhibit IND-14). 
662 India's first written submission, para. 174 (citing para. 1.2 of the National Electricity Policy). 
663 India's first written submission, para. 174 (citing para. 1.2 of the National Electricity Policy). 
664 India's first written submission, para. 174 (citing para. 1.8 of the National Electricity Policy). 
665 India's first written submission, para. 174 (citing para. 1.5 of the National Electricity Policy). 
666 India's response to Panel question No. 34(a) (citin g para. 5.12.1 of the National Electricity Policy). 
667 National Electricity Policy, (Exhibit IND-14), para. 5.12.1. 
668 National Electricity Plan, Central Electricity Authority (January 2012) ("National Electricity Plan"), 
(Exhibit IND-16). 
669 India's first written submission, para. 175 (citing  para. 3.2 of the National Electricity Policy). 
670 India's first written submission, para. 175 (citing  subsection 5.2.1 of the National Electricity Plan). 
671 Ibid. WT/DS456/R 
 
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  India specifically cites subsection 5.2.1 of the Nati onal Electricity Plan as containing the specific 
provisions of India's laws and regulations with which the measures at issue are designed to secure compliance.
672 Subsection 5.2.1 reads: 
5.2.1 Sustainable Development 
Sustainable Development of our country is our ultimate goal which encompasses 
economic development, maintaining environmental quality and social equity. This would also ensure that development takes place to fulfil our present needs without 
compromising the needs of our future generations. The importance and relevance of 
power development within the confines of Clean and Green Power is the most essential element. Such a growth depends up on the choice of an appropriate fuel / 
technology for power generation. Accordingly, the Plan takes into account the 
development of projects based on renewable energy sources as well as other 
measures and technologies promoting sustainable development of the country. 
The foremost Low Carbon Strategy Initiative is the choice for resources for power 
generation. Projects in the Plan based on Conventional Sources i.e. Hydro, Nuclear & 
thermal are selected as a result of Studies carried out using Capacity Expansion Software programmes to meet the demand as stipulated by the draft 18
th EPS Report. 
Power from Renewable Energy Sources has also been considered while carrying out 
these studies. 
The demand adopted for planning purpose is the draft 18th EPS demand projections. 
This demand is based on use of energy ef ficient technologies being used and energy 
conservation measures being adopted. Therefore, the planning strategy adopted is in 
accordance with low carbon strategy growth.673 
7.282.  Finally, India refers the Panel to Indi a's National Action Plan on Climate Change 
(NAPCC).674 In its first written submission, India states that the NAPCC "seeks to implement 
India's obligations under the UNFCCC".675 India explains that the NAPCC consists of eight missions, 
including the National Solar Mission, which togeth er present India's multi-pronged strategy to 
address the challenge of climate change. According to India, the "overall vision" of the NAPCC "is 
to promote sustainable development through the use of clean technologies".676 In its first written 
submission, India highlights that the NAPCC recognizes "that the poor are the most vulnerable to climate change, and that rapid economic growth is  an essential prerequisite to reduce poverty".
677 
India highlights the fact that the NAPCC "notes the strong positive correlation between energy use 
and human development, and that India needs to substantially increase its per capita energy 
consumption to provide a minimally acceptable level of well-being to its people".678 India also 
highlights the fact that the NAPCC "notes that solar based power technologies are an extremely 
clean form of generation with practically no form of emissions at the point of generation, and that this would lead to energy security through the displacement of coal and petroleum".
679 
7.283.  The NAPCC is a 56-page document divide d into several parts, entitled "Overview", 
"Principles", "Approach", "The Way Forward: Ei ght National Missions", "Implementation of 
Missions", and "Technical Document". The bulk of the NAPCC consists of the "Technical Document", which is divided into six sections entitled "Background to India's National Action Plan 
on Climate Change", "Some Current Programmes on  Adaptation and Mitigation", "Way Forward: 
Eight National Missions", "Other Initiatives", "I nternational Cooperation", and "References". In 
response to a question from the Panel asking Indi a to identify the specific provisions of India's 
laws and regulations with which the measures at issue are designed to secure compliance, India 
                                               
672 India's response to Panel question No. 34(a). 
673 National Electricity Plan, (Exhibit IND-16), subsection 5.2.1, pp. 90-91. 
674 National Action Plan on Climate Change, Government of India (June 2008) ("NAPCC"), (Exhibit 
IND-2). 
675 India's first written submission, para. 176. 
676 Ibid. 
677 India's first written submission, para. 176 (citing para. 1.1 of the NAPCC). 
678 India's first written submission, para. 176 (citing para. 1.2 of the NAPCC). 
679 India's first written submission, para. 176 (citing para. 3.1 of the NAPCC). WT/DS456/R 
 
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  summarizes several aspects of the NAPCC.680 First, India states that the NAPCC "seeks to 
implement India's obligations under  the UNFCCC and specifically emphasizes that India's approach 
should be compatible with its role as a responsible and enlightened Member of the international community", citing to page 1 of the "Overview".
681 Based on our review of the NAPCC, we 
understand India to be referring to the foll owing statements on page 1 of the NAPCC: 
Recognizing that climate change is a global challenge, India will engage actively in 
multilateral negotiations in the UN Framework Convention on Climate Change, in a 
positive, constructive and forward-looking manner. Our objective will be to establish 
an effective, cooperative and equitable global approach based on the principle of common but differentiated responsibilities and respective capabilities, enshrined in the [UNFCCC]. … Finally, our approach must al so be compatible with our role as a 
responsible and enlightened member of the international community, ready to make 
our contribution to the solution of a global challenge, which impacts on humanity as a whole.
682 
Second, India states that the NAPCC "charts the way forward for India through eight missions 
including the National Solar Mission, which was instituted to promote the use of solar energy, as an important way in which to achieve energy security through displacement of coal and 
petroleum". India cites to page 20 of the NAPCC,  where a brief summary of the National Solar 
Mission is found, in the context of the section en titled "The Way Forward: Eight National Missions". 
We understand India to be referring to the following statements made there: 
The National Solar Mission would promote the use of solar energy for power 
generation and other applications. …  
Solar based power technologies are an extremely clean form of generation with 
practically no form of emissions at the poin t of generation. They would lead to energy 
security through displacement of coal and petroleum.
683  
Third, India states that the "NAPCC also notes the importance of local manufacturing capacity with 
necessary technology tie-ups".684 India cites to page 22 of the NAPCC, which continues with the 
NAPCC's description of the National Solar Mission. The following statements are made in the 
context of a two-page subsection "R&D Colla boration, Technology Transfer, and Capacity 
Building": 
Rural solar thermal applications would also be pursued under public-private 
partnerships where feasible. Commensurate local manufacturing capacity to meet this 
level of deployment, with necessary technology tie-ups, where desirable, would be established. Further, the Mission would aim for local Photovoltaic (PV) production from 
integrated facilities at a level of 1000 MW/annum within this time frame. It would also 
aim to establish at least 1000 MW of Concentrating Solar Power (CSP) generation capacity, again, with such technical tie-ups as essential within the stated time 
frame.
685 
7.3.3.3  Whether the instruments identified  by India are "laws or regulations"  
7.284.  Having reviewed the relevant provisions of the international and domestic instruments 
identified by India, we now proceed to assess wh ether they are "laws or regulations" within the 
meaning of Article XX(d) of the GATT 1994. We  will begin by examining the international 
instruments, and we will then address the domestic instruments. We proceed in this manner not simply because India has distinguished between its "international and domestic obligations", but 
because different issues are raised in relation to these two different groups of instruments. India 
                                               
680 India's response to Panel question No. 34(a). 
681 India's response to Panel question No . 34(a) (citing page 1 of the NAPCC). 
682 NAPCC, (Exhibit IND-2), p. 1. 
683 NAPCC, p. 20. 
684 India's response to Panel question No . 34(a) (citing page  22 of the NAPCC). 
685 NAPCC, (Exhibit IND-2), at  p. 22. WT/DS456/R 
 
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  accepts that "[t]he burden is on India to establish that there is a law with which compliance is 
sought to be secured".686 
7.3.3.3.1  International instruments identified by India 7.285.  India states that the international instrument s that it has identified have "direct effect in 
the domestic legal system of India".
687 Among other things, India explains that "[u]nder Indian 
law, rules of international law are accommodated into domestic law without express legislative sanction, provided they do not run into conflict with laws enacted by the Parliament".
688 
7.286.  The United States submits that "India has not sufficiently demonstrated that those 
instruments have been incorporated into India's domestic legal system".689 In this regard, the 
United States refers to India's statement that, in India, "rules of international law are [automatically] accommodated into domestic law" only if "they do not run into conflict with laws 
enacted by Parliament".
690  
7.287.  Canada submits that "[t]he meaning of the term 'laws and regulations' does not include 
international obligations unless they form part of the domestic legal system of the WTO Member", 
and that "the international obligations must be those that are binding on the WTO Member and 
then transformed into legal obligations under the Member's domestic system".691 Canada states 
that India refers to a number of international instruments in its submission "but does not identify 
the specific obligations in them, how such obligations have become part of Indian law, or how its 
measures secure compliance with those laws".692 The European Union likewise submits that "it is 
questionable whether India can rely on instruments of international law, such as the United Nations Framework Convention on Climate Change  (UNFCCC), when its own submissions point out 
that, under Indian law, rules of international law are accommodated into domestic law without 
express legislative sanction only if they do no t run into conflict with laws enacted by the 
Parliament.
693  
7.288.  We note that India identifies the UNFCCC and other international legal instruments as 
"laws or regulations" within the meaning of Articl e XX(d). This raises the question of whether the 
terms "laws or regulations" include international legal instruments, as opposed to domestic legal 
instruments.  
7.289.  The Appellate Body addressed this issue in Mexico – Taxes on Soft Drinks . In that case, 
the Appellate Body found that the terms "laws or regulations" in Article XX(d) "refer to rules that 
form part of the domestic legal system of a WTO Member ".694 The Appellate Body arrived at this 
conclusion following a careful textual analysis that took into account a number of different 
interpretative elements. Beginning with the ordi nary meaning of the words used, the Appellate 
Body observed that "[t]he terms 'laws or regulation s' are generally used to refer to domestic laws 
or regulations", and that "one does not immediately think about international law when confronted 
with the term 'laws' in the plural".695  
7.290.  The Appellate Body proceeded to examin e the context in which these terms appear in 
Article XX(d). In this regard, the Appellate Body obse rved that "[t]he illustrative list of 'laws or 
regulations' provided in Article XX(d)" includes "matters [that] are typically the subject of domestic laws or regulations".
696 Next, the Appellate Body observed that the terms "laws or regulations" are 
qualified by the requirement that they not be "inconsistent" with the GATT 1994.697 Whereas the 
                                               
686 India's opening statement at the first meeting of the Panel, para. 55. 
687 India's response to Panel question No. 35. 
688 India's first written submission, para. 180. 
689 United States' opening statement at the first meeting of the Panel, para. 51. 
690 United States' opening statement at the first me eting of the Panel, para. 51 (citing India's first 
written submission, para. 180). 
691 Canada's third-party submission, para. 31. 
692 Ibid. 
693 European Union's third-pa rty submission, para. 65. 
694 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 69. (emphasis added) 
695 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 69. 
696 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 70. 
697 Appellate Body Report, Mexico – Taxes on Soft Drinks , fn 152. WT/DS456/R 
 
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  word "inconsistent" appears elsewhere in the GATT 1994 in connection with domestic measures, 
the Appellate Body observed that the WTO agreements generally use the word "conflict" when referring to treaty obligations.
698 The Appellate Body also observed that in contrast to Article 
XX(d), other provisions of the covered agreements, including Article XX(h) of the GATT 1994, refer 
expressly to "international obligations" or "international agreements".699 The Appellate Body also 
found it significant that, in Article X:1 of the GATT 1994, a distinction is drawn in the same provision between "laws [and] regulations" and "international agreements".
700 Finally, the 
Appellate Body considered that where the term "regulations" is used elsewhere in the covered 
agreements, it generally relates to domestic regulations.701 Thus, the Appellate Body held that "the 
terms 'laws or regulations' refer to rules that form part of the domestic legal system of a WTO 
Member ".702 
7.291.  This is not to say that international rule s cannot become "part of the domestic legal system 
of a WTO Member". In the course of its analysis, the Appellate Body identified two ways in which this may be the case. First, the Appellate Body st ated that "[d]omestic legislative or regulatory 
acts sometimes may be intended to implement an international agreement. In such situations, the 
origin of the rule is international, but the implementing instrument is a domestic law or regulation".
703 Thus, the Appellate Body explained that an international agreement may become 
"part of the domestic legal system" of a WTO Member through an "implementing instrument". 
Second, and of particular significance in the pres ent dispute, the Appellate Body noted that "[i]n 
some WTO Members, certain international rules may have direct effect within their domestic legal systems without requiring implementing legislatio n. In such circumstances, these rules also 
become part of the domestic law of that Member".
704  
7.292.  Regarding the second way for international rules to become "part of the domestic legal 
system of a WTO Member" as identified by th e Appellate Body, the Appellate Body noted the 
following point made by a third party in that dispute: 
[i]t is entirely possible that international agreements may be incorporated into the 
domestic legal order in such a way that they can be invoked as against individuals, 
and enforce[d] against them. If this is th e case, the international agreement, albeit 
international in origin, may be regarded as having become an integral part of the domestic legal order of such Member, and thus a law or regulation within the meaning of Article XX (d) [of the] GATT [1994].
705  
The Appellate Body made further similar statements regarding "direct effect" at several other 
points in the context of explaining its conclusion that "the terms 'laws or regulations' refer to rules that form part of the domestic legal system of a WTO Member". Specifically, in the context of 
explaining the significance of the distinctio n drawn between "laws [and] regulations" and 
"international agreements" in Article X:1 of the GATT 1994, the Appellate Body stated that "[s]uch 
a distinction would have been unnecessary if, as Mexico argues, the terms 'laws' and 'regulations' 
were to encompass international agreements that  have not been incorporated, or do not have 
direct effect in, the domestic legal system of the respective WTO Member".
706 In addition, in the 
above-mentioned context of observing that th e covered agreements typically use the word 
"inconsistent" (as in Article XX(d)) in connection with domestic measures, and instead "conflict" 
when referring to international treaty obligations, the Appellate Body stated that "this distinction 
supports the position that the terms 'laws or regulations' refer to the rules that are part of the domestic legal system of a WTO Member, including international rules that have been incorporated 
or have direct effect in a particular domestic legal system".
707 Finally, when stating its overall 
conclusion, the Appellate Body reiterated that "w e conclude that the terms 'laws or regulations' 
cover rules that form part of the domestic legal system of a WTO Member, including rules deriving 
                                               
698 Appellate Body Report, Mexico – Taxes on Soft Drinks , fn 152. 
699 Ibid. para. 71. 
700 Ibid.  
701 Ibid. fn 156. 
702 Ibid. paras. 69, 70, and 79. (emphasis added) 
703 Ibid. para. 69. 
704 Ibid. fn 148. 
705 Ibid. fn 149. 
706 Ibid. para. 71. 
707 Ibid. fn 152. WT/DS456/R 
 
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  from international agreements that have been incorporated into the domestic legal system of a 
WTO Member or have direct effect accord ing to that WTO Member's legal system".708  
7.293.  Based on the foregoing, it is apparent to us that in Mexico – Taxes on Soft Drinks , the 
Appellate Body found that the terms "laws or regula tions" in Article XX(d) only include "rules that 
form part of the domestic legal system of a WTO Member", including any "implementing 
instruments" to "incorporate" international agreements in the domestic legal system. International agreements (or other sources of international law) may constitute "laws or regulations" only 
insofar as they have been incorporated, or have "direct effect", within a Member's domestic legal 
system. We now turn to assess whether the international instruments identified by India form part of India's domestic legal system. 
7.294.  In its first written submission, India ex plained that "[u]nder Indian law, rules of 
international law are accommodated into domestic law without express legislative sanction, 
provided they do not run into conflict with laws enacted by the Parliament".
709 India added that 
"[t]he Supreme Court of India has held that principles of international environmental law, and the 
concept of sustainable development, which acts as a balancing concept between ecology and 
development, are fundamental to the environmen tal and developmental governance in India".710 
India further observed that "[t]he Supreme Court has also noted that the concept of sustainable 
development is a part of customary international law".711 India stated that "India's obligations 
under international treaties are also considered as a part of domestic law".712  
7.295.  At the first meeting of the Panel, India stated that "international law obligations are 
automatically incorporated into Indian law when there is no conflicting national law, and the 
executive wing of the government can implement such obligations".713 In this regard, India 
explained that "[u]nder the Constitution of India,  acts of the executive are not confined to areas 
where there is a pre-existing law. Acts of the union executive extend to aspects over which the 
Parliament has power to enact laws".714 Referring to a recent decision of the Supreme Court, India 
stated that "[a]cts of the Government in implementing international law obligations pursuant to treaties and resolutions that India has adhered to at the international level, are recognized under 
Indian law as constituting implementation of those obligations".
715 
7.296.  In response to a question from the Panel,  India stated that the international instruments 
that it has identified have "direct effect in the domestic legal system of India". India explained as follows: 
Under the Constitution of India, acts of th e executive are not confined to areas where 
there is a pre-existing law. Acts of the uni on executive extend to aspects over which 
the Parliament has the power to enact laws. This means that the Government can suo 
moto take implementing actions to secure compliance with India's international law 
                                               
708 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 79. 
709 India's first written submission, para. 180. 
710 Ibid. 
711 Ibid. 
712 India's first written submission, para. 256. 
713 India's opening statement at the first meeting of the Panel, para. 60. 
714 Ibid. 
715 India's opening statement at the first meeting of the Panel, para. 61. India explained as follows: 
The Supreme Court of India, in the context of exerci se of the Central Governme nt's executive power of 
establishing a power plant, recently ruled that the decision-making power by the executive in that case was 
based on the touchstone of sustainable development and its impact on ecology following national and 
international environmental principles. The principles on sustainable development in that case were inferred from the provisions of several instruments of intern ational environmental law, including the UNFCCC, the 
principles arrived at the other conventions concluded at the United Nations Conference on Environment and Development in 1992, including Agenda 21 and the Conventi on on Biological Diversity, as well as the Rio+5 
Summit of 1997, which adopted the Programme for Further Implementation of Agenda 21. The court did not go into whether or not the provisions or principles were legally binding or non-binding in nature. It simply noted the relevance of international environmental law, as enshrined in several legal instruments that states, in the exercise of their sovereign power, have  adhered to. It is in exercise of th ese powers that the policies referred 
to in India's submission were formulated by the Gove rnment, including the National [Action Plan on Climate 
Change], the National Electricity Policy. (India's opening statement at the first meeting of the Panel, para. 61, citing G. Sundarrajan v. Union of India  2013 (6) SCC 620, paras 161-174, (Exhibit IND-36)) WT/DS456/R 
 
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  obligations under the afore-mentioned instruments. They therefore have direct effect 
in the domestic legal system in India.716 
In its response to the same question, India also stated that "[a]cts of the Government in 
implementing international law obligations pursuant to treaties and resolutions that India has 
adhered to at the international level", have been recognized under Indian law as "constituting 
implementation" of those obligations. 
7.297.  We have taken careful note of India's explanation of how its domestic legal system 
functions. We accept India's explanation of the allocation of powers under the Constitution of 
India, and we accept its explanation that the ex ecutive branch may take implementing actions to 
secure compliance with India's international law obligations under the afore-mentioned instruments. We also accept India's explanation that the executive branch may take implementing 
actions without express sanction by the legislativ e branch, provided those implementing actions do 
not run into conflict with laws enacted by the Parliament.  
7.298.  However, in our view, these explanations  fail to demonstrate that the international 
instruments identified by India have "direct effe ct" in India. To the contrary, they seem to 
demonstrate that international agreements do not have "direct effect" in India. Specifically, India's 
explanations all suggest that either the execut ive branch and/or the legislative branch, as 
appropriate, must take "implementing actions" to incorporate and implement India's international 
obligations into its domestic legal system. By definition, this suggests that those obligations do not have "direct effect"; India's own explanations establish that international law obligations are not "automatically incorporated" into Indian law
717, but rather that they may possibly be acted upon 
and implemented by certain domestic authorities.  India emphasizes that its Supreme Court has 
held that principles of international environmental law, and the concept of sustainable development, "are fundamental to the environm ental and developmental governance in India"
718, 
and "has also noted that the concept of sust ainable development is a part of customary 
international law".719 However, this does not in our view speak to the question of whether 
international obligations are automatically incorporated into domestic law and have "direct effect" 
in India. 
7.299.  We recall the Appellate Body's statement that "[i]n some WTO Members, certain 
international rules may have direct effect within their domestic legal systems without requiring implementing legislation. In such circumstances, these rules also become part of the domestic law 
of that Member". We do not believe that th e Appellate Body's reference to implementing 
"legislation" in this context can be understood as implying a distinction between implementing actions taken by the legislative branch versus implementing actions taken by the executive 
branch, such that the question of whether an international agreement would be found to have 
"direct effect" for purposes of Article XX(d) would depend on whether the executive branch, as opposed to the legislative branch, takes implementing measures to incorporate them into the 
domestic legal system. India has not explained what would be the basis for such a distinction, and 
we find it difficult to see how such a definition  of "direct effect" could be reconciled with the 
distinction that the Appellate Body did draw, as between rules deriving from international 
agreements "that have been incorporated into the domestic legal system of a WTO Member" 
versus rules that "have direct effect according to that WTO Member's legal system".
720 Rather, we 
consider the Appellate Body to have been using the terms "direct effect" to mean international rules automatically incorporated into the domestic legal system without any form of "implementing 
instrument" being required, by the executive branch , the legislative branch, or any other branch of 
the government or organ of the State.  
7.300.  India has stated that the NAPCC "seeks to implement India's obligations under the 
UNFCCC".
721 As noted above, India has also stated that "[a]cts of the Government in implementing 
                                               
716 India's response to Panel question No. 35. 
717 India's opening statement at the first meeting of the Panel, para. 60. 
718 India's first written submission, para. 180 (citing Vellore Citizens Welfare Forum  v. Union of India 
and Others , (1996) 5 SCC 647 at paras 10-15). 
719 India's first written submission, para. 180. 
720 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 79. 
721 India's first written submission, paras. 2 and 176. WT/DS456/R 
 
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  international law obligations pursuant to treaties and resolutions that India has adhered to at the 
international level" have been recognized under Indian law as "constituting implementation" of those obligations. We understand India to be ex plaining that NAPCC seeks to "implement" the 
UNFCCC in the sense that it takes measures pursua nt to, and in furtheranc e of, India's obligations 
under the UNFCCC. Based on our above review of th e provisions in the NAPCC referred to by India, 
we do not understand India to be asserting that the NAPCC has the legal effect of incorporating India's rights and obligations under the UNFCCC in to its domestic legal system, so as to make 
those rights and obligations legally enforceable in India.
722 We understand the Appellate Body to 
have been referring to implementation in this se cond sense, when it referred to "rules deriving 
from international agreements that have been incorporated into the domestic legal system of a WTO Member".
723 
7.301.  India accepts that "[t]he burden is on In dia to establish that there is a law with which 
compliance is sought to be secured".724 Based on the foregoing, we find that India has failed to 
meet its burden of demonstrating that any of the international instruments at issue have "direct 
effect" in India, or that any of those instruments are "rules that form part of [its] domestic legal 
system". Accordingly, we find that India has failed to demonstrate that the preamble of the WTO Agreement, the United Nations Framework Convention on Climate Change, the Rio Declaration on 
Environment and Development, and the Rio+20 Document: The Future We Want, adopted by the 
United Nations General Assembly in 2012, can be considered "laws or regulations" within the meaning of Article XX(d) in the present dispute.  
7.3.3.3.2  Domestic instruments identified by India 
7.302.  We now turn to the domestic instruments identified by India. We recall that these domestic 
instruments include the Electricity Act, the National  Electricity Policy, the National Electricity Plan, 
and the National Action Plan on Climate Change. 
7.303.  India argues that "[e]ach of these instruments would qualify as 'laws or regulations' for the 
purposes of Article XX(d)."
725 India submits that "[m]erely because the law in question does not 
prescribe the means of implementation, does not mean they constitute an objective, or that their 
compliance cannot be secured".726 In seeking to argue that Article XX(d) should not be interpreted 
in a manner that attaches undue significance to the distinction between "legally binding and non-binding instruments", India states that "[s]uch an interpretation would mean that if India had a Climate Change Act, instead of a National Action Plan on Climate Change, it would have been able 
to justify [the] DCR [measures], but since it is on ly seeking to implement the National Action Plan 
on Climate Change and the UNFCCC, it cannot claim the exception under Article XX(d)."
727 These 
arguments pertain to both the domestic and international law instruments identified by India. 
7.304.  The United States notes that "many of the instruments cited by India appear to be broad 
policy documents with non-binding or merely hortatory effect", and "do not appear to be  laws or 
regulations with which India must 'compl y' within the meaning of Article XX(d)".728 The United 
                                               
722 To the extent that the UNFCCC (or any other international obligation) has been "implemented" by the 
NAPCC (or any other domestic instrument) under Indian domestic law in the legal sense of the term, a matter upon which we express no view, then we consider that it would be the NAPCC (or any other domestic 
instrument), not the UNFCCC (or any other international obligation), that constitutes the "law or regulation" under Article XX(d). In other words, we consider that when an international agreem ent has been incorporated 
through a domestic "implementing instrument", it woul d be that domestic implem enting instrument derived 
from the international agreement that constitutes the relevant "law or regulation" for the purpose of 
Article XX(d). As the Appellate Body explained, "[i]n such situations, the origin  of the rule is international, but 
the implementing instrument  is a domestic law or regulation ". Appellate Body Report, Mexico – Taxes on Soft 
Drinks , para. 69. (emphasis original) We address the NAPCC below in the context of assessing whether any of 
the domestic instruments identified by India are "laws or regulations" within the meaning of Article XX(d). 
723 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 79. 
724 India's opening statement at the first meeting of the Panel, para. 55. 
725 India's response to Panel question No. 68, para. 84. 
726 India's opening statement at the first meeting of the Panel, para. 57. 
727 India's opening statement at the first meeting of the Panel, para. 58. 
728 United States' opening statement at the first meeting of the Panel, para. 49. (emphasis original) See 
also United States' second written submission, para. 54. WT/DS456/R 
 
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  States submits that, "[o]n this fact alone, India has failed to demonstrate that the DCRs are 
necessary to comply with any law or regulation for purposes of Article XX(d)."729  
7.305.  The European Union likewise observes that  "some of the documents relied upon by India … 
are policy documents or non-binding declarations", and that India "seems to be largely relying on 
the general objectives of the laws and regulations it cites".730 
7.306.  By its terms, Article XX(d) only covers measures taken to secure compliance with "laws 
and regulations". The equally authentic Spanish and French versions likewise refer to "las leyes y 
de los reglamentos" and "des lois et règlements", respectively. Pursuant to Article 31 of the Vienna 
Convention, we must interpret Article XX(d) in accordance with the ordinary meaning to be given to these terms in their context and in the light of  the object and purpose of the WTO Agreement.  
7.307.  We commence our examination of the phrase "laws or regulations" by noting that "law" is 
defined in the Shorter Oxford English Dictionary  as a "rule of conduct imposed by secular 
authority", while "regulation" is defined as a "rule prescribed for controlling some matter, or for the regulating of conduct".
731 We observe that these definitions have been applied by prior panels 
interpreting the words "laws or regulations" in the context of Article XX(d)732 and Article X:1733 of 
the GATT 1994. Prior panels have further found that the ordinary meaning of the term "regulations", in the context of Article III:4 and Article X:1 of the GATT 1994, is equivalent to 
"mandatory rules applying across-the-board".
734 
7.308.  As a starting point, these dictionary defi nitions make clear that "laws" and "regulations" 
refer to " rules". We note that in Mexico – Taxes on Soft Drinks , the Appellate Body concluded that 
"the terms 'laws or regulations' refer to rules that form part of the domestic legal system of a WTO 
Member".735 Throughout its analysis of Article XX(d) and the meaning of the terms "laws or 
regulations", the Appellate Body understood these terms to refer to "rules".736 We further note that 
the dictionary definition of "law" includes a "rule of conduct ", and that the definition of "regulation" 
likewise refers to a "rule prescribed for controlling some matter, or for the regulating of 
conduct ".737 We consider that interpreting "laws or regulations" to mean rules governing conduct is 
consistent with the immediate context in which these terms appear.738 By its terms, Article XX(d) 
refers to "laws or regulations" in respect of whic h "compliance" can be secured. We consider that, 
by necessary implication, the "laws or regulations" referred to in Article XX(d) must therefore be rules in respect of which conduct would, or would not, be in "compliance".  
7.309.  The immediate context of the words "laws or  regulations" also implies that the "laws or 
regulations" referred to in Article XX(d) must be legally enforceable. First, as already explained 
above, the Appellate Body noted in the context of  " r u l e s  t h a t  f o r m  p a r t  o f  t h e  d o m e s t i c  l e g a l  
system" that international agreements may constitute "laws or regulations" covered by Article 
XX(d) "insofar as they are incorporated into the domestic legal order in such a way that they can 
be invoked as against individuals, and enforce[d] against them".
739 To the extent that this is a 
criterion for an international agreement to constitute a rule forming part of the domestic legal 
system, we do not see how a different standard could apply in respect of domestic instruments. 
Furthermore, the illustrative list of "laws or regu lations" provided in Article XX(d) sheds light on 
                                               
729 United States' opening statement at the first meeting of the Panel, para. 49. 
730 European Union's third-part y submission, paras. 66-67. 
731 Shorter Oxford English Dictionary , 5th edn., W.R. Trumble, A. Stevenson (eds.) (Oxford  University 
Press, 2002), Vol. 1, p. 1552. 
732 Panel Report, Mexico – Taxes on Soft Drinks , para. 8.193. 
733 Panel Report, EC – IT Products , para. 7.1025. 
734 Panel Reports, China – Publications and Audiovisual Products , para. 7.1448, and China – Auto Parts , 
para. 7.239 (both citing GATT Panel Report on Canada – FIRA , para. 5.5, which was followed by Panel Report 
on India—Autos , para. 7.181), and EC – IT Products , fn 1335. 
735 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 69. (emphasis added) 
736 Appellate Body Report, Mexico – Taxes on Soft Drinks , paras. 69, 70, 75, 77, and 79. 
737 Shorter Oxford English Dictionary , 5th edn., W.R. Trumble, A. Stevenson (eds.) (Oxford  University 
Press, 2002), Vol. 2, p. 2516. 
738 In the context of interpreting Article III:8(a) of the GATT 1994, the Appellate Body noted that the 
word "governing" is defined as "constitut[ing] a law or rule for". Appellate Body Reports, Canada – Renewable 
Energy / Feed-In Tariff Program , para. 5.58 (citing Oxford English Dictionary online). 
739 Appellate Body Report, Mexico – Taxes on Soft Drinks , fn 149. WT/DS456/R 
 
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  the scope of the "laws or regulations" covered by this provision.740 These examples refer, inter 
alia, to measures relating to customs "enforceme nt", and the "enforcement" of monopolies. Other 
examples refer to measures for the "protection" of intellectual property rights, and for the "prevention" of deceptive practices; the Appellate Body has also characterized those types of "laws 
or "regulations" as "enforcement measures".
741  
7.310.  We further observe that Article XX(d) refers to measures that are necessary to " secure 
compliance " with "laws or regulations" and not, for exam ple, measures that are necessary "to fulfil 
a legitimate objective"742 of such "laws or regulations". It is well established in GATT/WTO 
jurisprudence that the phrase "to secure compliance with laws or regulations" in Article XX(d) means measures "to enforce obligations under laws or regulations", and not measures "to ensure the attainment of the objectives of the laws and regulations".
743 Therefore, prior panels have found 
that measures that may be consistent with or further the objectives of a law or regulation, but 
which do not enforce any obligations contained therein, do not fall within the scope of Article XX(d).
744  
7.311.  Based on the foregoing, we conclude that the terms "laws or regulations" refer to legally 
enforceable rules of conduct under the domestic legal system of the WTO Member concerned, and 
do not include general objectives. We will now examine whether the domestic instruments 
identified by India constitute "laws or regulations" within the meaning of Article XX(d). 
7.312.  The Electricity Act was enacted by India's Parliament, and received the "assent" of the 
President on 26 May 2003.745 It has formal characteristics that are normally associated with a 
statute. For example, it contains a date of entry into force746, a section defining the terms used in 
the instrument747, and throughout it is divided into numbered parts, sections and subsections that 
consist of rules cast in binding language. Section 3, the provision identified by India, appears to constitute a legally enforceable rule of conduct under the domestic legal system of India. As 
elaborated above, it mandates that the Central Government "shall" perform certain conduct, i.e. 
prepare and publish the National Electricity Policy and tariff policy from time to time. It further 
mandates that the Central Electricity Authority referred to in sub-section (1) of section 70 "shall" 
perform certain conduct, most notably that it must prepare a National Electricity Plan in 
accordance with the National Electricity Policy and no tify such plan once in five years. Based on the 
foregoing, we find that the Electricity Act, and in particular Section 3 thereof, constitutes a "law" for the purposes of Article XX(d). 
7.313.  There are striking contrasts between the Electricity Act, on the one hand, and the National 
Electricity Policy, the National Electricity Plan, and the National Action Plan on Climate Change, on the other. First, each is expressly entitled a "pol icy" or "plan", and the language of the provisions 
and passages in these documents identified by India, which we have set out above, does not 
suggest the existence of any legally enforceable rule s. Rather, these extracts appear to consist of 
language that is hortatory, aspirational, declaratory, and at times solely descriptive. In this regard, 
these documents appear similar to the JNNSM Mission Document, which India has variously 
characterised as a "vision document", containing "broad recommendations", and a "'wish list' of objectives".
748  
                                               
740 The Appellate Body has referred to this illustrative list for the purpose of interpreting the meaning of 
"laws or regulations" by implic ation. Appellate  Body Report, Mexico – Taxes on Soft Drinks , para. 70. 
741 See, e.g. Appellate Body Report, Korea –Various Measures on Beef , paras. 163 and 170. 
742 In contrast to the wording of Article XX(d) of the GATT 1994, Article 2.2 of the TBT Agreement refers 
to measures "necessary to fulfil a legitimate  objective , taking account of the risks non-fulfilment would create". 
743 GATT Panel Report, EEC – Parts and Components , para. 5.17; Panel Reports, Canada – Periodicals , 
para. 5.9; Canada – Wheat Exports and Grain Imports , para. 6.248; EC – Trademarks and Geographical 
Indications  (US), para. 7.447; Mexico – Taxes on Soft Drinks , para. 8.175; Colombia- Ports of Entry , 
para. 7.538. 
744 We return to this issue, and prior jurisprudenc e, in the context of addressing whether the DCR 
measures are measures "to secure compliance" with laws  or regulations. See paras.  7.330.  to 7.332.   
745 Electricity Act, (Exhibit USA-20), p. 1. 
746 Electricity Act, Section 1. 
747 Electricity Act, Section 2. 
748 India's first written submission, paras. 2, 26, 38, and 39. WT/DS456/R 
 
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  7.314.  Second, apart from the hortatory, aspirational, and declaratory language in the provisions 
and passages identified, India has not suggested that these "policies" and "plans" are legally 
binding, or that they are substantively similar to Acts or other instruments under its domestic legal system.
749 To the contrary, in seeking to argue that Article XX(d) should not be interpreted in a 
manner that attaches undue significance to th e distinction between "legally binding and non-
binding instruments", India states that "[s]uch an interpretation would mean that if India had a Climate Change Act, instead of a National Action Plan on Climate Change, it would have been able 
to justify [the] DCR [measures], but since it is on ly seeking to implement the National Action Plan 
on Climate Change and the UNFCCC, it canno t claim the exception under Article XX(d)."
750 This 
appears to be an acknowledgement that the National Action Plan on Climate Change is not legally binding.  
7.315.  We see nothing in the National Electricit y Policy, the National Electricity Plan, or the 
National Action Plan on Climate Change to suggest that these documents are legally enforceable, either as against the Government or any other entity. For example, in contrast to the Guidelines  
and Request for Selection  documents analysed earlier in our Report, we see nothing in these policy 
documents referring to sanctions or penalties in the event of a failure to achieve the objectives set forth therein. The National Electricity Policy stat es that it "aims at laying guidelines" for the 
achievement of certain objectives.
751 The National Electricity Plan is described as a "reference 
document".752 The National Action Plan on Climate Change states: 
The Prime Minister's Council on Climat e Change, in the first meeting on 13th July, 
2007, had decided that " A National Document compiling action taken by India for 
addressing the challenge of Climate Change, and the action it proposes to take " be 
prepared.  
 
The National Action Plan for Climate Change responds to the decision of the PM's 
Council, as well as updates India's national programmes relevant to addressing climate change. It identifies measures that promote our development objectives, while 
also yielding co-benefits for addressing climate change effectively. It lists specific 
opportunities to simultaneously advance India's development and climate related objectives of both adaptation as well as greenhouse gas (GHG) emission.
753 
7.316.  We asked India to clarify the legal status, under the domestic law of India, of the National 
Action Plan on Climate Change, the National Elec tricity Policy, and the National Electricity Plan. 
India responded that each of these instruments ar e "laws or regulations" within the meaning of 
Article XX(d). In this regard, India first referred to the Appellate Body's conclusion that "the terms 
'laws or regulations' cover rules that form part  of the domestic legal system of a WTO Member, 
                                               
749 In the absence of any agreed definition or prac tice regarding the formal characteristics that an 
instrument must possess to be charac terized as a "law" or "regulation", and in light of the diversity of WTO 
Members' domestic legal systems, it would be unwise to seek to formulate one in the abstract. Thus, we agree 
with the Appellate Body's statement that what constitute s a "law" or "regulation" falling within the scope of 
WTO provisions using those terms should be judged "not simply" by reference to the label given to various 
instruments under the domestic  law of each WTO Member and "not mere ly on its form or nomenclature", but 
rather "based on the content and substance of the instrument". Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , fn 87. 
However, within a given legal system, we consider that the label and nomenclature given to an 
instrument may be relevant in sofar as it sheds light on th e substance and status of that instrument within that 
Member's domestic legal system. We note the statement by another panel, in a different context, that "the Panel sees no reason why, fo r example, the type of instrument or so-c alled 'formal' features of the transaction 
would be disregarded if they shed light on the nature" of the domestic instruments under consideration. Panel 
Report, US – Large Civil Aircraft (2
nd complaint) , para. 7.1137. 
750 See, e.g. India's opening statement at the first meeting of the Panel, para. 58. 
751 National Electricity Policy , (Exhibit IND-14), paragraph 1.8 (stating, "[t]he National Electricity Policy 
aims at laying guidelines for accelerated development of the power sector, providing supply of electricity to all areas and protecting interests of consumers and other st akeholders keeping in view availability of energy 
resources, technology available to ex ploit these resources, economics of ge neration using different resources, 
and energy security issues.") 
752 National Electricity Policy , (Exhibit IND-14), paragraph 3.1 (stati ng that [t]he Plan prepared by CEA 
and approved by the Central Government can be used by prospective generating companies, transmission 
utilities and transmission/distribution licensees as reference document".) 
753 NAPCC, (Exhibit IND-2), p. 13. WT/DS456/R 
 
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  including rules deriving from international agreements that have been incorporated into the 
domestic legal system of a WTO Member or have direct effect according to that WTO Member's legal system".
754 We do not see how this statement relates to the question of the legal status, 
under the domestic law of India, of the National Action Plan on Climate Change, the National 
Electricity Policy, and the National Electricity Plan under the domestic law of India.755 
7.317.  India further stated, in response to this same question concerning the legal status of these 
instruments under its domestic law, that these instruments "are all policies adopted by the 
Government of India in exercise of its executiv e powers granted under the Constitution". With 
respect to India's statement that these instrument s were adopted lawfully, we have no reason to 
doubt that this is the case. Nor would we preclude the possibility that the legality of an instrument's adoption or enactment could potentially be relevant for an assessment of whether it 
constitutes a "law or regulation" within the meaning of Article XX(d). However, insofar as this is a 
necessary condition, an issue we need not decide, we see no basis for treating the legality of a document's adoption or enactment as a sufficient condition, or the decisive factor, for finding that 
it is a "law or regulation" within the meaning of Article XX(d).  
7.318.  India accepts that "[t]he burden is on In dia to establish that there is a law with which 
compliance is sought to be secured".
756 B a s e d  o n  t h e  f o r e g o i n g ,  w e  f i n d  t h a t  S e c t i o n  3  o f  t h e  
Electricity Act is a "law" within the meaning of Article XX(d). However, we find that India has failed 
to meet its burden of demonstrating that the other domestic provisions and instruments at issue constitute legally enforceable rules of conduct in its domestic legal system. Accordingly, we find that the National Electricity Policy, the National Electricity Plan, and the National Action Plan on 
Climate Change do not constitute legally enforceable rules of conduct, and are not "laws or 
regulations" within the meaning of Article XX(d) of the GATT 1994.  
7.319.  As indicated at the outset, demonstrating that a challenged measure is a measure "to 
secure compliance with laws or regulations which are not inconsistent" with the GATT 1994 entails 
demonstrating the cumulative requirements that ther e are "laws or regulations", that they are "not 
inconsistent with the provisions of" the GATT 1994, and that the measures at issue are measures 
to "secure compliance" with those laws and regulations. Of the international and domestic 
instruments identified by India, we have found that only one, Section 3 of the Electricity Act, is a "law or regulation" within the meaning of Article XX(d). Will therefore proceed to examine whether Section 3 of the Electricity Act is "not inconsistent with the provisions of" the GATT 1994. If we 
find that it is, we will then examine whether the DCR measures are measures "to secure 
compliance" with Section 3 of the Electricity Act.  
7.3.3.4  Whether Section 3 of th e Electricity Act is "not inconsistent with the provisions" 
of the GATT 1994 
7.320.  India asserts that all of the internationa l and domestic instruments at issue "constitute 
laws or regulations that are not inconsistent with the provisions of GATT 1994".
757 India also notes 
that the "importance of the value of sustainabl e development sought to be implemented by the 
DCR Measures is accepted and forms a part of the letter and spirit of the WTO Agreement".758 
                                               
754 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 79. 
755 It is not clear to us if the intended import of India's citation to these statements is that these 
domestic instruments are "rules deri ving from international agreements", and it therefore follows, from this, 
that they qualify as "rules that fo rm part of the domestic  legal system of a WTO Member" for purposes of 
Article XX(d). Insofar as India is ma king this argument, we disagree. First, we do not consider that the 
Appellate Body's statement can be construed to mean that domestic instruments that would not otherwise 
qualify as "laws or regulations" will so qualify insofa r as they derive from international agreements that 
likewise are not "laws or regulations" within the meaning of Article XX(d). Second, ev en if we were to agree 
with such a reading of the Appellate Bo dy's statement, which we do not, it would still need to be demonstrated 
that the domestic instruments are "r ules" deriving from international agreements. We have found that India 
has failed to demonstrate that the prov isions referred to by it constitute  legally enforceable rules of conduct 
under its domestic legal system. 
756 India's opening statement at the first meeting of the Panel, para. 55. 
757 India's first written submission, para. 241. See also India's opening statement at the first meeting of 
the Panel, para. 55. 
758 India's first written submission, para. 257. WT/DS456/R 
 
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  7.321.  The United States has not questioned the GATT-consistency of Section 3 of the Electricity 
Act. Members' laws are presumed to be WTO-consistent unless proven otherwise.759 
7.322.  Accordingly, by virtue of the normal oper ation of the burden of proof, we conclude that 
Section 3 of the Electricity Act meets the requirement of being "not inconsistent with the 
provisions" of the GATT 1994. 
7.3.3.5  Whether the DCR measures are measur es "to secure compliance" with Section 3 
of the Electricity Act  
7.323.  The parties hold opposing views on whether the DCR measures are measures "to secure 
compliance" with any of the international or domestic instruments identified by India. Their disagreement appears to revolve around two main issues.  
7.324.  First, the parties disagree on whether th e exception in Article XX(d) extends to measures 
taken by a government to secure its own compliance with laws or regulations. The United States 
argues that Article XX(d) does not apply to measures taken to secure a government's own compliance with its laws and regulations.
760 In support of its view that Article XX(d) covers only 
those measures necessary for a government to enforce its laws and regulations vis-à-vis persons 
subject to its jurisdiction, the United States argu es that the wording of Article XX(d), including the 
terms "secure compliance" and "enforce", "strongly suggest that the actor doing the enforcing is 
distinct from the object(s) subject to enforcement".761 India argues that measures "to secure 
compliance with laws or regulations" in Article XX(d) include measures taken by a government to secure its own compliance with its laws and regulations.
762 In India's view, the reasoning by the 
United States "is without any basis or support in the actual legal texts".763 Third parties have 
expressed divergent views on this interpretative issue.764  
7.325.  Second, the parties have expressed different views on the nature of the link or nexus that 
is required, between the challenged measure and th e underlying "laws or regulations", in order for 
a measure to be characterized as a measure "to secure compliance" with those laws or regulations 
under Article XX(d). In this regard, the United States emphasizes that "none of the instruments cited by India encourage, much less require, the imposition of DCRs for solar cells and 
modules".
765 Likewise, the European Union states, with respect to the instruments at issue, that 
India has not shown that there is "any provision that would require specific action of imposing DCRs".
766 India argues that this cannot be the correct legal standard to apply, because any laws or 
regulations that mandated the imposition of a measure found to be inconsistent with one or more 
GATT obligations, and sought to be justified under Article XX(d), would never constitute a law or 
regulation "not inconsistent with the provisions of this Agreement".767  
7.326.  We note that in the context of its argumentation under Article XX(d), India's references to 
the Electricity Act are confined to explaining that Section 3 of the Electricity Act mandates the 
                                               
759 Panel Reports, US – Gambling , para. 6.549; US – Customs Bond Directive , para. 7.301; Colombia – 
Ports of Entry , para. 7.531 (citing Appellate Body Report, US – Carbon Steel , para. 157). 
760 See United States' response to Panel question No. 28(b), paras 45 -56; United States' second written 
submission, paras. 46-53; United States' opening statemen t at the second meeting of the Panel, paras. 38-39; 
United States' comments on India's response  to Panel question No. 66, paras. 51-52. 
761 United States' second written submission, para. 48. 
762 See India's response to Panel question No. 33; India's second written submission, paras. 124-135; 
India's opening statement at the second meeting of the Panel, paras. 30-34; India's response to Panel question No. 66, para. 81; India's comments on the United States ' response to Panel question No. 69(b), paras. 60-61. 
763 India's second written submission, para. 133. 
764 See the responses by Canada, the European Union, and Japan to Panel question No. 6 to the third 
parties. 
765 United States' second written submission, paras. 54-67; United States' opening statement at the 
second meeting of the Panel, paras. 40-41; United States' comments on India's response to Panel question No. 66, para. 53. 
766 European Union's third-party su bmission, para. 67; European Union's response to question No. 5 
from India following the first meeting. 
767 India's opening statement at the second meeting of the Panel, para. 36; India's closing statement at 
the second meeting of the Panel, para. 14; India's comme nts on the United States' response to Panel question 
No. 69(c), para. 76. WT/DS456/R 
 
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  Government to prepare a National Electricity Policy and tariff policy.768 India states that its 
domestic law obligations are those embodied in the Electricity Act, "read with"769 the National 
Electricity Policy, the National Electricity Plan, and the National Action Plan on Climate Change. India has not advanced any arguments on the issue of how the DCR measures "secure compliance" 
with Section 3 of the Electricity Act as such.  
7.327.  As set forth above, Section 3 of the Electricity Act establishes the legal basis for the 
development of the National Electricity Policy and the National Electricity Plan. It identifies the 
entities involved in the periodic preparation, pu blication, and review of the National Electricity 
Policy and the National Electricity Plan. It does not prescribe the content or substance of either the National Electricity Policy or the National Electricity Plan, other than to state that the National Electricity Policy to be prepared from time to time will be "based on optimal utilisation of 
resources" such as "coal, natural gas, nuclear substances or materials, hydro and renewable 
sources of energy". 
7.328.  We note that prior panels have found that for a measure to be one to "secure compliance" 
with "laws or regulations" within the meaning of Article XX(d), it must be established that the 
actions prevented by the measure are inconsistent with one or more obligations contained in those laws or regulations. In this regard, the GATT panel in EEC – Parts and Components explained that  
"to secure compliance with laws or regulations" means that the measure "must prevent actions 
inconsistent with the obligations set out in laws or regulations", i.e. measures that "prevent actions that would be illegal under the laws or regulations" at issue.
770 Likewise, the panel in China 
– Autos , following the example of the earlier panel in Korea – Various Measures on Beef , framed 
the issue as whether the actions that the measure "a imed to prevent" are "contrary to the specific 
provisions" of the law or regulation at issue.771 Following this approach, the panel in China – Auto 
Parts concluded that: 
China has not discharged its burden to prove that the measures "secure compliance" 
with its tariff schedule, because China has not explained to our satisfaction how the types of actions that China claims amount to  "circumvention" of the tariff provisions 
for motor vehicles (i.e. importing and assembling auto parts in China, with or without 
any intention to avoid/evade the higher tariff duties for motor vehicles) are inconsistent with the obligations under its tariff schedule and hence need to be prevented through the measures.
772 
7.329.  Therefore, even assuming for the sake of argument that Article XX(d) could potentially 
cover measures taken by India to secure its own compliance with its laws or regulations, which is a 
legal issue we consider it unnecessary to resolve, it would have to be demonstrated that the DCR 
measures secure compliance, by the Central Government of India or the Central Electricity 
Authority, with their obligations set out in Section 3 of the Electricity Act. India has advanced no such argument, and we see no link or nexus between the DCR measures and Section 3 of the 
Electricity Act. In this regard, we fail to see how the DCR measures could be said to secure 
compliance with the obligations in Section 3 of the Electricity Act, which are to periodically prepare the National Electricity Policy and the National Electricity Plan.
773 India has not suggested that the 
DCR measures are aimed at preventing the Central Government of India or the Central Electricity 
Authority from acting inconsistently with their obligations to periodically prepare the National 
Electricity Policy and the National Electricity Plan.  
7.330.  In our view, the most that could be said is that the DCR measures may be consistent with 
or further the same objectives referred to in the El ectricity Act, namely the "optimal utilisation of 
resources" such as "coal, natural gas, nuclear substances or materials, hydro and renewable 
                                               
768 India's first written submission, paras. 173 and 175; India's response to Panel question No. 34(a). 
769 India's first written submission, para. 240; India' s opening statement at the first meeting of the 
Panel, para. 54; India's response to Panel question No. 34(a); India's second written submission, para. 137. 
770 GATT Panel Report, EEC – Parts and Components , para. 5.15. 
771 Panel Report, China – Autos Parts , para. 7.315 and fn 572 (citing Panel Report, Korea – Various 
Measures on Beef , paras. 655, 658). 
772 Panel Report, China – Auto Parts , para. 7.346. 
773 Given that we see no link or nexus between the DCR measures and Section 3 of the Electricity Act, 
we consider it unnecessary to resolve the question of pr ecisely what type of link or nexus would be required to 
establish that the DCR measures "secure compliance" with this law. WT/DS456/R 
 
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  sources of energy".774 However, we recall that, as indicated above, it is well established in 
GATT/WTO jurisprudence that the phrase "to secure compliance with laws or regulations" in Article XX(d) means measures "to enforce obligations under laws or regulations", and not measures "to ensure the attainment of the objectives of the laws and regulations".
775 Therefore, 
prior panels have found that measures that may be  consistent with or further the objectives of a 
law or regulation, but which do not enforce any obligations contained therein, do not fall within the scope of Article XX(d).  
7.331.  For example, in Canada – Periodicals , Canada asserted that a prohibition on imported 
magazines containing domestic advertising was required to secure compliance with a tax measure that limited deductions to expenses incurred in advertising in domestic magazines. The panel concluded that although the ban on imported magazines might have the incidental consequence of 
ensuring that the tax deduction was not abused, and, therefore, the ban "may share the same 
policy objective" with the tax measure, that alone was insufficient to establish that the import ban was meant to "secure compliance" with tax legislation.
776 Likewise, in Canada – Wheat Exports and 
Grain Imports , the panel found that the measure "may allow Canada … to ensure the attainment of 
the objectives" of the Canada Grain Act, but that this did not suffice to establish that it was a measure designed to "secure compliance" with laws or regulations. Canada argued that if certain 
products, such as GMO grain not approved in Canada, were found in shipments of Canadian grain, 
this would have deleterious effects on Canadian exports, as it would have a negative impact on consumer confidence in Canada's quality assurance system. The Panel rejected this argument, stating:  
We note in this respect that Article XX(d) provides that the WTO-inconsistent measure 
that is sought to be justified must be "necessary to secure compliance  with laws and 
regulations" that are not themselves inconsistent with the provisions of the 
GATT 1994. The panel in European Economic Community - Regulations on Imports of 
Parts and Components  found this phrase to mean "to enforce obligations under laws 
and obligations" and not "to ensure the attainment of the objectives of the laws and 
regulations".
777 Therefore, the fact that Section 57(c) of the Canada Grain Act  may 
allow Canada to control for SPS and GMO problems and thus helps Canada preserve consumer confidence which, in turn, helps to ensure the attainment of the objectives of, say, the Canada Grain Act , would not be sufficient to bring Section 57(c) within the 
protective scope of Article XX(d).
778  
7.332.  In line with these cases, we consider that it is insufficient for the DCR measures to merely 
ensure the attainment of, or be consistent with, objectives referenced in Section 3 of the Electricity 
Act. Rather, it would be necessary to demonstrate that the DCR measures serve to enforce the 
specific obligations contained in the law at issue. Based on the foregoing, we conclude that India has failed to demonstrate that DCR measures are measures "to secure compliance" with the legal 
obligations in Section 3 of the Electricity Act.  
                                               
774 Electricity Act, (Exhibit USA-20), Section 3(1). 
775 GATT Panel Report, EEC – Parts and Components , para. 5.17; Panel Reports, Canada – Periodicals , 
para. 5.9; Canada – Wheat Exports and Grain Imports , para. 6.248; EC – Trademarks and Geographical 
Indications  (US), para. 7.447; Mexico – Taxes on Soft Drinks , para. 8.175; Colombia- Ports of Entry , 
para. 7.538. 
776 Panel Report, Canada – Periodicals , para. 5.10. The panel stated:  
"Tariff Code 9958 cannot be regarded as an enforcement measure for Section 19 of the Income Tax Act.  
It is true that if a govern ment bans imports of foreign periodicals with  advertisements  directed at the domestic 
market, as does Canada in the presen t case, the possibility of non-compliance with a tax provision granting tax 
deductions for expenses incurred for ad vertisements in domestic periodicals will be greatly re duced.  It would 
seem almost impossible for an enterp rise to place an advertisement in a foreign periodical because there would 
be virtually no foreign periodical available in which to place it. Thus, there would be no way for the enterprise 
legally to claim a tax deduction therefor. However, that is  an incidental effect of a separate measure distinct 
(even though it may share the same policy objective) from the tax provision which is designed to give an incentive for placing advertisements in Cana dian, as opposed to fo reign, periodicals." 
777 GATT Panel Report, EEC – Parts and Components , paras. 5.14-5.18. 
778 Panel Report, Canada – Wheat Exports and Grain Imports , para. 6.248. WT/DS456/R 
 
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  7.3.3.6  Conclusion  
7.333.  For the reasons set forth above, we find that, with the exception of Section 3 of the 
Electricity Act, India has failed to demonstrate that the international and domestic instruments that it has identified are "laws or regulations" within the meaning of Article XX(d). As regards 
Section 3 of the Electricity Act, India has failed to demonstrate that DCR measures are measures 
to "secure compliance" with the legal obligations in this provision. Accordingly, we find that India has failed to demonstrate that the DCR measures are measures "to secure compliance with laws or 
regulations which are not inconsistent with the pr ovisions of [the GATT 1994]". We therefore find 
that the DCR measures are not justified under Article XX(d) of the GATT 1994.  
7.3.4  Whether the DCR measures are "essentia l" or "necessary" within the meaning of 
Articles XX(j) and XX(d)  
7.3.4.1  Introduction 
7.334.  We have found that solar cells and modu les are not "products in general or local short 
supply" in India within the meaning of Article XX( j) of the GATT 1994. We have further found that 
the DCR measures are not designed "to secure co mpliance with laws or regulations" within the 
meaning of Article XX(d) of the GATT 1994. These are the threshold legal elements that must be 
satisfied in order to find that a measure is justified under Articles XX(j) and XX(d), and India's 
defences fail to meet this threshold. Accordingly, it is unnecessary for us to make any further 
findings on whether the DCR measures are "essential" to the acquisition of solar cells and modules for the purpose of Article XX(j), or whether they are "necessary" within the meaning of 
Article XX(d). Were we to find that they are "essential" or "necessary" within the meaning of 
Articles XX(j) and XX(d), this would still have no implications for the overall conclusion given that 
the threshold legal elements under these provisions are not satisfied. Were we to find that they are not "essential" or "necessary" within the mean ing of these provisions, this would merely serve 
to establish a separate and additional basis for the overall conclusion, which we have already 
reached, that the DCR measures are not justified under Articles XX(j) or XX(d). 
7.335.  However, we note that our findings on the threshold legal elements under Articles XX(j) 
and XX(d) each involve novel issues of law and legal interpretation on which the parties hold 
opposing views. We further note that the question  of whether the DCR measures are "essential" or 
"necessary" within the meaning of Articles XX(j ) and XX(d) has been the subject of extensive 
argumentation, and implicates a number of factual issues. If our findings on the threshold legal 
elements under Articles XX(j) or XX(d) were modi fied or reversed on appeal, then the Appellate 
Body could be called upon to proceed to examine whether the DCR measures are "essential" or "necessary" within the meaning of Articles XX(j) and XX(d), respectively. In such circumstances, 
we consider it useful to proceed with a limited analysis and review so that the Appellate Body may 
have the benefit of our factual findings related to these issues.  
7.336.  Our limited analysis and review is primaril y factual. This limited analysis and review will 
involve identifying the different issues that would need to be considered, the parties' positions on 
those different issues, and our factual findings on those issues. Having found that the threshold legal elements under Articles XX(j) and XX(d) are not satisfied in this case, and given the limited and specific purpose for our proceeding further with an examination of whether the DCR measures 
are "essential" or "necessary", we do not see an y compelling reason for the Panel to reach any 
overall conclusion, or make any finding, on whether the DCR measures are "essential" or "necessary" within the meaning of Articles XX(j) and XX(d), respectively.
779  
7.3.4.2  The relevant objective and fundam ental issue in dispute for the purpose of 
assessing whether the DCR measures are "essential" or "necessary"  
7.337.  In the context of addressing whether solar cells and modules are "products in general or 
local short supply" in India, we have already considered the evidence and arguments of the parties 
regarding the risk of a disruption in imports of solar cells and modules. We found that the evidence provided by India establishes that, in the absenc e of any measures taken by SPDs or India to 
                                               
779 Our approach is similar to that taken by an other panel in a recent case. See Panel Report, US – 
COOL (Article 21.5 – Canada and Mexico) , paras. 7.672-7.716. WT/DS456/R 
 
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  ensure continued access to foreign solar cells and modules, and simply taking their continued 
availability for granted, there is some risk of di sruption in the supply of affordable foreign solar 
cells and modules to India.780  
7.338.  Given our finding that there is some risk of disruption in the supply of affordable foreign 
solar cells and modules to India, and in light of the parties' argumentation781, it appears to us that 
the fundamental issue in dispute for the purpos e of determining whether the DCR measures are 
"essential" or "necessary" under Articles XX(j) and XX(d) is whether the DCR measures ensure, or 
reduce this risk of a disruption in, Indian SPDs' access to a continuous and affordable supply of the 
solar cells and modules needed to generate solar power.  
7.339.  We understand that the objective of ensuring Indian SPDs' access to a continuous and 
affordable supply of the solar cells and modules needed to generate solar power exists in a wider 
context. In particular, we understand that the objective of ensuring Indian SPDs' access to a 
continuous and affordable supply of the solar cells and modules needed to generate solar power is not an objective that exists in isolation from India's ultimate policy objectives of energy security 
and sustainable development. In other words, realizing the objective of ensuring Indian SPDs' 
access to a continuous and affordable supply of the solar cells and modules needed to generate solar power would enable India's SPDs to maintain a continuous and affordable supply of clean 
electricity generated from solar power, which would in turn reduce India's reliance on imported oil 
and coal to meet its energy needs, and would ulti mately contribute to the realization of achieving 
its objectives of energy security and sustainable development.  
7.340.  Nevertheless, we do not consider that these wider objectives of energy security and 
sustainable development would be legally relevant to the question of whether the DCR measures 
are "essential to the acquisition" of products in short supply under Article XX(j). We therefore disagree with India's statement that, in the contex t of Article XX(j), the DCR measures must "be 
examined in the context of the overall objectives of energy security and ecologically sustainable 
growth for which  acquisition or distribution of domestically manufactured solar cells and modules is 
essential ".
782 As we see it, measures taken to ensure Indian SPDs' access to a continuous and 
affordable supply of solar cells and modules, and thus to eliminate or reduce the risk of a 
disruption in the supply of these products, can be characterized as measures for the "acquisition" of those products by Indian SPDs, and would ther efore fall within the scope of Article XX(j). It 
would follow that if India could demonstrate that the DCR measures are "essential" to ensure 
Indian SPDs' access to a continuous and affordable supply of the solar cells and modules needed to 
generate solar power, this would constitute a sufficient basis for establishing that the DCR measures are "essential to the acquisition" of those products by Indian SPDs. However, we see no 
basis, in the text of Article XX(j) or otherwise fo r requiring India to further demonstrate that such 
"acquisition" is in turn necessary for the realization of India's ultimate objectives of realizing energy security and sustainable development. In this regard, the relevant question under 
Article XX(j) is whether the DCR measures are "essential to the acquisition" of products in short 
supply, and not whether the acquisition of those pr oducts is in turn essential for the achievement 
of some wider policy objective.  
7.341.  Demonstrating that the DCR measures are necessary to ensure Indian SPDs' access to a 
continuous and affordable supply of the solar cells and modules is also a fundamental premise of 
India's argumentation under Article XX(d).
 In this regard, India argues that the DCR measures 
"have been designed to secure compliance with India's obligations under its law and regulations 
which require it to ensure ecologically sustaina ble growth and sustainable development", and it 
explains that they do so "by creating a local manufacturing base for solar PV cells and modules, in order to ensure the ability of [domestic manufacturers to] satisfy the requirements for such cells 
and modules" by Indian SPDs.
783 To the same effect, India argues, in the context of Article XX(d), 
that it "is seeking to develop a functional local manufacturing base for cells and modules, which 
                                               
780 See para. 7.261.  above. 
781 See paras. 7.15.  to 7.17.  , and 7.189.  to 7.191.  , above. 
782 India's response to Panel question No. 69(a), para. 86. (emphasis original) 
783 India's first written submission, para. 255.   WT/DS456/R 
 
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  are the essential components in a solar PV genera tion plant, thereby ensuring a sustained supply 
of the same in the event of disruptions in imports".784  
7.342.  For purposes of the analysis under Articl es XX(j) and XX(d), it therefore appears that the 
fundamental issue in dispute is whether the DCR measures are "essential" or "necessary" to 
ensure, or reduce the risk of a disruption in, Indian SPDs' access to a continuous and affordable 
supply of the solar cells and modules needed to generate solar power. Our limited analysis and review proceeds on this understanding. 
7.3.4.3  The legal standards in Articles XX(j) and XX(d) 
7.343.  For a measure to be justified under Article XX(j), it must be "essential" to the acquisition 
or distribution of products in general or local short supply. For a measure to be justified under Article XX(d), it must be "necessary" to secure compliance with laws or regulations not 
inconsistent with the GATT 1994. We recall that in its Report in US – Gasoline , the Appellate Body 
noted, with regard to the terms linking the chap eau and each paragraph of Article XX of the GATT 
1994, that: 
It does not seem reasonable to suppose that the WTO Members intended to require, in 
respect of each and every category, the same kind or degree of connection or relationship between the measure under appraisal and the state interest or policy 
sought to be promoted or realized.
785 
7.344.  In this case, the parties have advanced different views on whether the use of the word 
"essential" in Article XX(j) establishes a different and more stringent legal threshold as compared with the word "necessary" in Article XX(d). According to the United States, a measure that is 
"essential" within the meaning of Article XX(j) of the GATT 1994 must be "absolutely 
indispensable" or "absolutely necessary".
786 India notes that the Oxford English Dictionary includes 
"necessary" as a synonym for "essential", and argues that the requirement that the measure is 
"essential" for its policy objective is not limited to what is "absolutely indispensable" but also 
encompasses situations that are "necessary".787  
7.345.  We do not consider it necessary to resolve this issue for the purpose of our limited analysis 
and review. In our view, the following considerations are sufficient for the purpose of establishing 
a general analytical framework to apply for the purpose of assessing whether the DCR measures are "essential" or "necessary". 
7.346.  First, in Article XX(j), the relevant legal issue is whether the measure is "essential to the 
acquisition or distribution" of products in general or local short supply. We agree with India when it 
states that the term "essential to" serves to "sig nif[y] the relationship between a measure, and its 
objective of acquisition or distribution of products in general or local short supply".
788 As noted 
above in our findings under the threshold legal element in Article XX(j), this stands in contrast to 
Article XI:2(a) of the GATT 1994, which refers to "products essential" to the exporting Member. Thus, whether a measure is "essential to the acquisition or distribution" of products in short supply 
is different from the question of whether those products are essential. It is also different from the 
question of whether the acquisition or distribution of those products in turn is essential to one or more policy objectives.  
7.347.  Furthermore, we consider that whether the DCR measures are "essential" to the 
acquisition or distribution of products is also different from the threshold legal questions under 
Articles XX(j) and XX(d). We found, in the context of our assessment of whether solar cells and modules are "products in general or local short supply" under Article XX(j), that India has not 
demonstrated any imminent risk of a shortage of solar cells and modules in India. However, the 
relevant question for the purposes of assessing whether the DCR measures are "essential" or 
                                               
784 India's first written submission, para. 261. 
785 Appellate Body Report, US – Gasoline , p. 18. 
786 United States' second written submission, para. 38. 
787 India's second written submission, para. 62; Indi a's response to Panel question No. 25(b), p. 32. 
788 India's closing statement at the first meeting of  the Panel, para. 9; In dia's response to Panel 
question No. 25(b); India's second  written submission, para. 61. WT/DS456/R 
 
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  "necessary" within the meaning of Articles XX(j) or XX(d) is not whether this risk is imminent, but 
rather whether the DCR measures are essential or necessary to reducing or eliminating this risk by e n s u r i n g  a f f o r d a b l e  a c c e s s  t o  t h o s e  p r o d u c t s  b y  S P D s  w h i c h ,  a s  w e  h a v e  n o t e d  a b o v e ,  c a n  b e  characterized as the "acquisition" of those products. In our view, measures taken to prevent 
relevant risks can be "essential" within the meaning of Article XX(j), and "necessary" within the 
meaning of Article XX(d), without a showing that those risks are imminent.
789  
7.348.  Second, it is not in dispute that the threshold for establishing that a measure is "essential" 
under Article XX(j) is at least the same as for establishing that a measure is "necessary" under 
Article XX(d). We note that in interpreting the meaning of "necessity" as it is used in Article XX(d), the Appellate Body clarified that: 
the term "necessary" refers, in our view, to  a range of degrees of necessity. At one 
end of this continuum lies "necessary" understood as "indispensable"; at the other 
end, is "necessary" taken to mean as "making a contribution to." We consider that a "necessary" measure is, in this continuum, located significantly closer to the pole of 
"indispensable" than to the opposite pole of simply "making a contribution to".
790 
We further note that, in interpreting the word "e ssential" in the context of Article XI:2(a) of the 
GATT 1994, which refers to "products essential" to the exporting Member, the Appellate Body was 
of the view that the term "essential" means "absolutely indispensable or necessary".791 Thus, we 
agree that a measure that would not meet the threshold of being "necessary" within the meaning of Article XX(d) would not meet the minimum threshold needed to demonstrate that it is "essential" within the meaning of Article XX(j).  
7.349.  Third, the parties agree that the general analytical framework that applies for assessing 
whether a measure is "necessary" under Article XX(d) can also be applied in the context of assessing whether a measure is "essential" under Article XX(j). We note that it is well established 
that an analysis of whether a measure is "necessary" within the meaning of Article XX(a), XX(b), 
and XX(d) involves, in most cases, a two-step analysis. The first step of a necessity analysis is a holistic weighing and balancing process of a series of factors, which must include the importance of 
the objective, the trade-restrictiveness of the measure, and the contribution of the measure to the 
objective.
792 The second step of the necessity analysis asks whether "a WTO-consistent alternative 
measure which the Member concerned could 'reasonably be expected to employ' is available or whether a less WTO-inconsistent measure is 'reasonably available'".
793 In other words, it must be 
demonstrated that no alternative measure is reasonably available.794 In this case, the United 
States and India apply this same general analytical framework to the "essential" nexus in Article XX(j).
795 Several third parties have  advanced similar views.796 We see no reason to disagree 
with the parties and third parties. Therefore, for the purpose of our limited analysis and review of 
the information before the Panel, we will proc eed on the basis that the general analytical 
framework that would need to be applied to assess whether the DCR measures are "essential" 
under Article XX(j) is similar to whether a measure is "necessary" to realize a given objective. 
                                               
789 See fn 618 above. 
790 Appellate Body Reports, Korea – Various Measures on Beef , para. 161. 
791 Appellate Body Reports, China – Raw Materials , para. 326. 
792 Appellate Body Reports, Korea – Various Measures on Beef , para. 164; US – Gambling , para. 306; 
and Brazil – Retreaded Tyres , para. 182. 
793 Appellate Body Reports, Korea – Various Measures on Beef , para. 166; EC – Seal Products , 
para. 5.261. 
794 See Panel Reports, EC – Seal Products , para. 7.639, upheld by the Appellate Body in para. 5.290 of 
its Reports in EC – Seal Products . 
795 United States' second written submission, paras. 41-42; India's second written submission, 
paras. 62-86. 
796 In this regard, Canada states that the "essential" test would operate in a similar way to the 
"necessary" test. Canada's response to Panel question No. 3(b) to the third partie s, para. 18. The European 
Union notes that the necessity analysis under Article XX(a), XX(b), and XX(d) may be instructive for the "essential" test. European Union's response to Panel ques tion No. 3(b) to the third parties, para. 18. Brazil, 
Canada and the European Union indicate that an analys is of the term "essential" requires, under the same 
conditions as an analysis of the te rm "necessary", a comparison of th e measure with reasonably available 
alternatives. Brazil's response to Panel question No. 3(b) to the third parties, p. 4; Canada's response to Panel 
question No. 3(b) to the third partie s, paras. 17-18; European Union's resp onse to Panel question No. 3(b) to 
the third parties, paras. 18-19. WT/DS456/R 
 
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  7.350.  In sum, it appears to us that for purposes of the analysis under both Articles XX(j) and 
XX(d), the relevant and fundamental objective that India is seeking to fulfil is to ensure, or reduce the risk of a disruption in, Indian SPDs' access to a continuous and affordable supply of the solar cells and modules needed to generate solar power. It further appears to us that, leaving aside the 
question of whether the terms "essential" and "necessary" establish the same legal threshold
797, 
the parties agree that the threshold for establishing that a measure is "essential" under XX(j) is at least as high as that for establishing that a measure is "necessary" under Article XX(d). The parties 
further agree that the general analytical framew ork that would need to be applied to assess 
whether the DCR measures are "essential" under Article XX(j) is similar to the two-step analysis of assessing whether a measure is "necessary" to realize a given objective. We note that all of the third parties that expressed views on the simila rities and possible differences between the legal 
standards in Articles XX(j) and XX(d) also seem to agree with the foregoing.
798  
7.3.4.4  Importance of the objective, tr ade restrictiveness, and contribution  
7.351.  We now turn to the arguments and information presented by the parties on the factors 
that would have to be weighed and balanced in the first step of the analysis under Articles XX(j) 
and XX(d), which are: (a) the importance of the objective of ensuring Indian SPDs' access to a 
continuous and affordable supply of the solar cells and modules needed to generate solar power; 
(b) the trade-restrictiveness of the DCR measures; and (c) the contribution of the DCR measures 
to the realization of that objective. 
7.352.  We begin with the importance of the ob jective that India is seeking to realize. The 
Appellate Body has stated that: 
assessing a measure claimed to be necessary to secure compliance of a WTO-
consistent law or regulation may, in appropriate cases, take into account the relative importance of the common interests or values that the law or regulation to be 
enforced is intended to protect. The more vital or important those common interests 
or values are, the easier it would be to accept as "necessary" a measure designed as an enforcement instrument.
799  
7.353.  The United States has indicated that "i t does not question that the acquisition and 
distribution of solar cells and modules to Indian  SPDs, and ensuring domestic resilience against 
supply-side disruptions, are important".800  
7.354.  In our view, ensuring that Indian SPDs have access to a continuous and affordable supply 
of the solar cells and modules needed to generate solar power is an important objective. Having 
said this, we do not have specific information or evidence on what the consequences would be in the event of a disruption in Indian SPDs' access to  affordable supply of the solar cells and modules 
that are needed to generate solar power. The consequences could depend on the nature and 
duration of any such disruption, as well as the volume of solar cells and modules that SPDs would be seeking to acquire. However, it is not in dispute that solar cells and modules are needed to 
generate solar power. Thus, in the event that In dian SPDs were unable to access any affordable 
supply of solar cells or modules for any extended period of time, this could have serious implications for SPDs' ability to maintain or increase their capacity to generate solar power. Furthermore, we recall our earlier conclusion that India has provided evidence establishing that, in 
the absence of any measures taken by SPDs or India to ensure continued access to foreign solar 
                                               
797 We note that the United States observes that, for the purpose of resolving this dispute, the Panel 
"need not identify exactly" the difference between thes e two legal standards. United States' second written 
submission, para. 42. 
798 Brazil's response to Panel question No. 3(b) to th e third parties, p. 4; Ca nada's response to Panel 
question No. 3(b) to the third partie s, paras. 15-18; European Union's resp onse to Panel question No. 3(b) to 
the third parties, paras. 16-18; Japan's response to Pa nel question No. 3(b) to the third parties, para. 15. 
799 Appellate Body Report, Korea  - Various Measures on Beef , para. 162. See Panel Reports, EC – Seal 
Products , para. 7.632, and Appellate Body Reports, EC – Seal Products , para. 5.203. 
800 United States' second written submission, para. 42. WT/DS456/R 
 
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  cells and modules, and simply taking th eir continued availability "for granted"801, there is some 
risk of disruption in the supply of affordable foreign solar cells and modules to India.802 
7.355.  We turn now to the second factor, which is the trade-restrictiveness of the DCR measures. 
The Appellate Body has explained that the necessity analysis may include consideration of "the 
extent to which the compliance measure produces restrictive effects on international commerce, 
that is, in respect of a measure inconsistent with Article III:4, restrictive effects on imported 
goods ", and stated that "[a] measure with a relatively slight impact upon imported products might 
more easily be considered as 'necessary' than a measure with intense or broader restrictive 
effects".803  
7.356.  As we have already found, the DCR measures restrict the use of foreign solar cells and 
modules by SPDs that are participating, or would have participated, in the National Solar Mission. 
Thus, the measures at issue are trade restrictive.804  
7.357.  As regards the degree of trade-restrictiveness, India emphasizes that the DCRs "are 
limited in scope" and "do not constitute a ban on  imported solar cells and modules", and recalls 
that as part of its overall strategy of ensuring adequate supply, it has taken measures to 
encourage and incentivize imports of solar cells and modules.805 In contrast, the United States 
emphasizes that "[f]or projects to which they apply, the DCRs impose a ban on imports, which is 
one of the most severe forms of trade restriction" , and adds that "while they do not apply to all 
projects funded through the NSM, they do cover a large proportion".806 In our view, the parties' 
arguments regarding the degree of trade-restrictiveness do not present any disputed factual issues. Rather, it appears to us that the partie s emphasize different aspects of the DCR measures, 
and attach different significance to the undisputed facts concerning the scope and context of the 
DCR measures.  
7.358.  The arguments presented by India gene rally seek to emphasize that the scope and 
coverage of the applicable DCR measure did not extend to all types of cells, modules, and/or 
projects, and further seek to place the DCR measures  in a larger context, so as to diminish the 
restrictive character of the requirements imposed on the use of imported solar cells and modules. 
If that is the correct perspective for assessing the trade restrictiveness of the measure, then we 
consider that the DCR measures at issue in this dispute could be said, as India argues, to have a "relatively slight impact upon imported products".
807 Likewise, insofar as the analysis of trade-
restrictiveness focuses on the types of solar ce lls and modules whose use was permitted under the 
DCR measures at issue, and the extent to which SP Ds made use of those flexibilities, then it may 
be concluded that "[t]he first phase of the JNNSM likely had little negative impact on U.S. exports 
of PV modules to India" given that "thin film modules are the primary U.S. exports to India, and 
these products were not subject to [D]CRs in phase [I]".808 Insofar as the analysis of trade-
restrictiveness focuses on the wider context of the solar power market in India, then it would also 
be relevant that "U.S. firms, however, contin ue to pursue projects outside of the JNNSM".809  
7.359.  The United States, on the other hand, seeks to focus more closely on the restrictive effects 
on those foreign goods whose use is not permitted under Phase I (Batch 1), Phase I (Batch 2), and Phase II (Batch 1), and focuses on the portion of projects under the National Solar Mission where 
domestic solar cells and modules were used, rather than those that were not. If that is the correct 
perspective for assessing the trade restrictiveness of the measure, then we consider that the DCR 
measures at issue in this dispute could not be said to have a "relatively slight impact upon imported products".
810 For example, the outright prohibition on SPDs using any foreign c-SI 
                                               
801 India's comments on the United States' resp onse to Panel question No. 58, para. 53. 
802 See paragraph 7.261.   
803 Appellate Body Report, Korea – Various Measures on Beef , para. 163. (emphasis original) 
804 See paragraphs 7.7.  to 7.14.   above. 
805 India's second written submission, para. 67. 
806 United States' second written submis sion, para. 42 (fourt h bullet point). 
807 See Appellate Body Report, Korea – Various Measures on Beef , para. 163. 
808 Trade, Investment, and Indust rial Policies in India: E ffects on the U.S. Economy, United States 
International Trade Commission (December 2014), (Exhibit IND-32), p. 179. 
809 Trade, Investment, and Indust rial Policies in India: E ffects on the U.S. Economy, United States 
International Trade Commission (December 2014), (Exhibit IND-32), p. 182. 
810 See Appellate Body Report, Korea – Various Measures on Beef , para. 163. WT/DS456/R 
 
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  modules in Phase I could not be said to have had a relatively slight impact on the use of those 
particular products under Phase I.  
7.360.  We note that the overall analysis of whether the DCR measures are "essential" or 
"necessary" would need to reflect a coherent pe rspective and even-handed approach with respect 
to the assessment of the DCR measures' trade-restrictiveness and the assessment of the DCR 
measures' contribution to ensuring Indian SPDs' access to a continuous and affordable supply of the solar cells and modules needed to generate solar power. Thus, if it were concluded that the 
DCR measures have had a "relatively slight impact upon imported products"
811 based on the facts 
that the DCR measures apply only to projects within the National Solar Mission rather than more broadly within India's solar energy market, and th at the scope and coverage of the applicable DCR 
measure did not extend to all types of cells, modules, and/or projects, then those same facts 
would also have to be taken into account in the assessment of the contribution of the DCR 
measures to their objective. 
7.361.  The third factor to be considered would be the contribution of the DCR measures to 
ensuring Indian SPDs' access to a continuous and affordable supply of the solar cells and modules 
needed to generate solar power. We recall th at the Appellate Body has explained that "a 
contribution exists when there is a genuine rela tionship of ends and means between the objective 
pursued and the measure at issue", and that the selection of a methodology to assess a measure's 
contribution "depends on the nature, quantity, and quality of evidence existing at the time the analysis is made".
812 The contribution of a measure to the fulfilment of an objective can be 
demonstrated by way of "quantitative projections in  the future, or qualitative reasoning based on a 
set of hypotheses that are tested and supported by sufficient evidence".813 For example, the extent 
to which a measure is apt to contribute at some point in the future may lead to the conclusion that the measure makes a contribution.
814  
7.362.  We consider that the following factual findings could be relevant to an assessment of the 
contribution made by the DCR measures to ensuring Indian SPDs' access to a continuous and affordable supply of the solar cells and modules needed to generate solar power. 
7.363.  First, it appears that India does not dispute the argument made by the United States and 
the European Union that the DCR measures, by reducing the sources of supply available to SPDs, are, in the short term, antithetical to the objective of ensuring Indian SPDs' access to a continuous and affordable supply of the solar cells and modules.
815 In our view, it is self-evident that, in the 
short term, the DCR measures are unlikely to contribute to ensuring that Indian SPDs' have access 
to a continuous and affordable supply of the solar cells and modules needed to generate solar power. 
7.364.  Second, the information before the Panel concerning the effect of the DCR measures on 
increasing domestic manufacturing capacity of solar cells and modules appears to cast doubt on whether such effect is positive. The DCR measures could provide an incentive to actors to set up 
domestic manufacturing capacity through the benefits accorded to projects which comply with 
their mandatory conditions. In this regard, India notes that the Phase II Policy Document  provides 
the following assessment: "Provision of requirement of domestic content for setting up solar power projects was kept in the guidelines for Phase-I with a view to develop indigenous capacities and 
generate employment. It was noted that the production capacities for solar PV cells and modules 
have expanded in the country."
816 On the other hand, we note that the same document states that 
"there is no significant capacity utilization despit e addition of manufacturing capacity as observed 
during Phase I".817 Further,  a World Bank study submitted by India, entitled  Paving the Way for a 
Transformational Future, Lessons from JNNSM Phase I, found that the DCR measure "which was 
                                               
811 See Appellate Body Report, Korea – Various Measures on Beef , para. 163. 
812 Appellate Body Report, Brazil – Retreaded Tyres , para. 145. 
813 Appellate Body Report, Brazil – Retreaded Tyres , para. 151. 
814 Appellate Body Reports, EC – Seal Products , para. 5.213. 
815 United States' second written submission, para . 39; European Union's third-party submission, 
paras. 51 and 73. 
816 Phase II Policy Document, Jawaharlal Nehru National Solar Mission , Ministry of New and Renewable 
Energy (December 2012), (Exhibit USA-3), p. 21, section 1.3.10, last bullet point. 
817 Phase II Policy Document, Jawaharlal Nehru National Solar Mission , Ministry of New and Renewable 
Energy (December 2012), (Exhibit USA-3), p. 50. WT/DS456/R 
 
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  intended to promote the local manufacturing industry, has actually resulted in a skewed 
technology choice and Indian manufacturers ha ve derived minimal benefit from the program".818 
Furthermore, Indian manufacturers appear to have raised similar concerns. In an exhibit submitted by India, the "key finding" regarding th e DCR measures as formulated in Phase I of the 
National Solar Mission is the following: 
While the domestic content requirement (DCR) has garnered international attention 
and raised concerns among some foreign stakeholders, most developers do not 
identify it as a major barrier to project development. The case for a robust domestic 
manufacturing base rests on multiple objectives: energy security, technology development, energy access, ensuring product standards, attracting foreign investment, and creating jobs. Even so, many manufacturers expressed the view that 
the DCR, as currently structured, is not sufficiently stimulating local manufacturing . 
Manufacturers face other systemic limitations, such as poor infrastructure, lack of raw materials, an undeveloped supply chain, and lack of financing.
819 
We further note that information before the Panel shows that some stakeholders have questioned 
the bias for thin-film technologies in Phase I, noting that the DCR measures create "an uneven playing field and ha[d] helped propagate signific ant overcapacity in the domestic silicon PV 
manufacturing industry", whereas, since thin-fil m PV technologies are exempted from the DCR 
measures in Phase I, "many solar players believe the DCR [in Phase I] is not creating the right conditions for domestic manufacturing in India".
820 This "has possibly been a detriment to Indian 
crystalline-based manufacturing".821 Regarding the DCR measures in Phase I, the conclusion in the 
cited exhibit is that the DCR measures in Phase I appear "largely ineffectual to date".822 Whereas 
this exhibit concludes that "[a] modified DCR could have a positive influence on domestic manufacturing if it is technology-neutral and not overly restrictive"
823, we do not see that India 
has put forward evidence that, under Phase II (Bat ch 1) of the National Solar Mission, the DCR 
measure indeed has a positive influence on domestic manufacturing capacity. To the contrary, in an exhibit submitted by the United States, the Nati onal Solar Energy Federation of India (NSEFI), 
an industry association comprised of Indian solar power developers, notes that "developers are 
facing tremendous challenges" regarding the DCR measure in Phase II (Batch 1), most importantly "a supposed cartelization by some of the larger domestic cell manufacturers" that "has made DCR projects economically unviable", and consequentiall y, "it has become impossible for developers to 
execute DCR projects".
824 
7.365.  Third, India has not identified any related measures that it is taking to ensure the supply 
of the raw materials necessary to domestically produce and utilize solar cells and modules. 
According to information provided by India, the In dian PV manufacturing industry is dependent on 
imports for raw materials and consumables, such as wafer and polysilicon manufacturing, as India does not have polysilicon manufacturing capacity and has no significant wafer manufacturing 
capability.
825 In an exhibit presented by India concerning Phase I, it is stated that: "[w]hile India 
                                               
818 Lessons from JNNSM Phase I,  (Exhibit IND-9), p. 19. 
819 Assessing Progress under Phase I , (Exhibit IND-8), p. 10. (emphasis added) 
820 Assessing Progress under Phase I , p. 21. 
821 Assessing Progress under Phase I , p. 23. 
822 Assessing Progress under Phase I , p. 21. Footnote 131 to this citation adds that "the states are not 
interested in imposing such DCR re quirements since their primary objective is to lower the cost of solar 
power". 
823 Assessing Progress under Phase I , (Exhibit IND-8), p. 23. 
824 Natural Group , "NSEFI Letter to SECI and MNRE Regardin g Issues With DCR Category Projects Under 
JNNSM Phase II, Batch I" (26 March 2014), (Exhibit USA-2), p. 2. 
825 Lessons from JNNSM Phase I,  (Exhibit IND-9). At page 21, the exhibit states that "[t]he PV 
manufacturing industry in India has also not been ab le to integrate backwards in the areas of wafer and 
polysilicon manufacturing, thus being substantially depe ndent on imports for raw materials and consumables". 
At page 72 (footnote omitted), Exhibit IND-9 states: "[w]hile there is no polysilicon manufacturing capability in India, technically 15 MW of ingot and wafer manufacturing ca pacity exists, although this is a pilot unit which is 
not commercial in nature. The Indian  solar manufacturing segment is thus  primarily represented by solar cell 
and module manufacturers. A few pr ojects have been announced to undertake manufacturing of other 
components in the value chain such as polysilicon, ingots and wafers; however, none of these have made progress on the ground on account of viability concerns in the current global pricing scenario". Page 72 of 
Exhibit IND-9, Box A101, entitled Indian Manufacturing Landscape, explains that: (a) "India has no polysilicon 
manufacturing capacity", and that "[t] o sustain 20 GW of installation (including central and state policies), 
 WT/DS456/R 
 
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  has many cell and module manufacturers, there is a dearth of producers of raw materials, 
inverters, and balance of system components". Wh ereas the exhibit notes that "[t]he industry is 
now taking steps toward greater self-sufficiency"826, these steps seem limited: "[f]or example, 
SOLARCON, a yearly conference, is organized by SEMI India with an objective to widen solar 
industry manufacturing capabilities".827 According to another exhibit, India is also highly 
dependent on batteries, and needs to develop a network of system integrators.828 Finally, as noted 
above, Indian manufacturers have stated themselv es that they "face other systemic limitations, 
such as poor infrastructure, lack of raw materials, an undeveloped supply chain, and lack of 
financing".829 In response to a question from the Panel on this issue, India argues that it does not 
"foresee any problems in supply of materials such as wafers and polysilicon materials".830 This 
argument is based on the assertion that there are many smaller companies, including in India, 
which "are making significant strides in the solar PV upstream manufacturing segment".831 India 
submits the names of two public sector companie s and one private sector company, but does not 
assert that these companies could supply the required products necessary to produce and put to 
use solar cells and modules in the event of a disruption in imports of wafers, polysilicon materials, 
and other raw materials.  
7.366.  Fourth, from the information and arguments before the Panel, it is not clear that any 
increase in domestic manufacturing capacity for solar cells and modules would result in ensuring 
that Indian SPDs have access to a continuous and affordable supply of the solar cells and modules. The reason is that it is not clear that domestic manufacturers, who are separate entities from SPDs, would sell solar cells or modules to Indian SPDs in the event of a shortage or other 
disruption in imported solar cells and modules. In this regard, India does not dispute that 
domestically produced solar cells and modules would become part of the global market and thus likely be sold to the highest paying purchaser, which would not necessarily be an Indian buyer. 
The information before the Panel is that, currently, Indian manufacturers of solar cells and 
modules, rather than selling exclusively to Indian SPDs, also sell their products to foreign buyers.
832 In response to a question from the Panel in this regard, India stated that it does not 
have plans to restrict the entities to which Indian manufacturers could supply domestically 
produced solar cells and modules, because "the situation posed by the United States is not foreseeable. Adequate policy measures may need to be considered if and when such a situation was to arise".
833 We note that, insofar as the depreciation of the Indian currency could cause a 
disruption in supply by virtue of imports becomi ng more expensive, as India has argued, this 
depreciation would necessarily make domestically produced solar cells and modules cheaper and thus more competitive on the international market . We further note that the United States has 
provided evidence that NSEFI has complained that domestic manufacturers of solar cells and 
modules significantly increased the prices charged to Indian SPDs immediately following the imposition of the DCR measures.
834  
                                                                                                                                               
India would need an annual capacity of approximately 14, 000 metric ton of polysilicon"; and (b) "[t]here is no 
significant wafer manufacturing capability in Indi a", and that "[a]round 2,000 MW per annum of wafer 
manufacturing capability would be required for sustaining 20 GW of installation". Finally, at page 73 of Exhibit 
IND-9 it is noted that "[m]ost of the raw materials and consumables for cell and module manufacturing are 
imported. This includes all gases, silver paste, ethylene vinyl acetate, and so on. A domestic ecosystem needs to be developed which can make the most of locally accessible components, minimizing supply chain challenges and also exercising control over  random price fluctuations". 
826 Assessing Progress under Phase I , (Exhibit IND-8), p. 20. 
827 Assessing Progress under Phase I , (Exhibit IND-8), p. 36, fn 108 on p. 20. 
828 Lessons from JNNSM Phase I,  (Exhibit IND-9), p. 74, Table A102. 
829 Assessing Progress under Phase I , (Exhibit IND-8), p. 10. 
830 India's response to Panel question No. 72, paras. 97-98. 
831 Ibid. 
832 The evidence provided by India indicates that the Indian solar PV manufacturers exported their 
goods for a total of US$321.89 million in 2009, US$549.54 million in 2010, US$174.82 million in 2011, and US$80.88 million in 2012. Exhibit IND-9, p. 73. According to another exhibit submitted by India, "[p]rior to the NSM, Indian manufacturing of solar components was primarily export-dependent, with about 70 percent of cells and 80 percent of modules exported to Euro pe, the United States, Japan, and Australia". Assessing 
Progress under Phase I , (Exhibit IND-8), p. 17 (footnote omitted). 
833 India's response to Panel question No. 71, para. 95. 
834 PV Tech , "Solar Cell Price Rises 'Putting Indian Domest ic Content Projects At Risk'" (March 28, 2014), 
(Exhibit USA-1). WT/DS456/R 
 
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  7.367.  In sum, we conclude that ensuring that Indian SPDs have access to a continuous and 
affordable supply of the solar cells and modules n eeded to generate solar power is an important 
objective. Furthermore, India has provided eviden ce that establishes that, in the absence of any 
measures taken by SPDs or India to ensure continued access to foreign solar cells and modules, 
and simply taking their continued availability "for granted", there is a risk of disruption in the 
supply of affordable foreign solar cells and modules to India. With regard to the trade-restrictiveness of the measures, it is not in dispute that the DCR measures restrict the use of 
foreign solar cells and modules by SPDs that are participating in the National Solar Mission. With 
regard to the contribution of the DCR measures to the realization of India's objective, we conclude 
that, in the short term, the DCR measures are unlikely to make any contribution to ensuring Indian SPDs' access to a continuous and affordable supply of the solar cells and modules needed to 
generate solar power, and arguably undermine that objective. With regard to the contribution of 
the DCR measures to the realization of India's obje ctive over the long term, we conclude that the 
information before the Panel concerning the effect of the DCR measures on increasing domestic 
manufacturing capacity of solar cells and modules appears to cast doubt on whether such effect is 
positive; that India has not identified any related measures that it is taking to ensure the supply of the raw materials and consumables necessary to domestically produce and utilize solar cells and 
modules; and that it is not clear that domestic manufacturers would sell solar cells or modules to 
Indian SPDs, as opposed to their foreign compet itors, in the event of a shortage or other 
disruption in the supply of imported solar cells and modules. 
7.368.  Based on the foregoing, we find that India has not demonstrated that the DCR measures 
ensure that Indian SPDs have access to a continuous and affordable supply of the solar cells and 
modules needed to generate solar power. Beyond this, the information submitted to the Panel does not enable us to assess the extent to which the DCR measures could lead to some increased 
domestic manufacturing capacity of solar cells and modules in the long term, or the extent to 
which any such increased domestic manufacturing capacity could in turn contribute to reducing the risk of a disruption in Indian SPDs' ability to access to a continuous and affordable supply of the 
solar cells and modules. Thus, we conclude that the effect of the DCR measures is uncertain and 
unpredictable with respect to the realization of India's objective of ensuring a continuous and affordable supply of solar cells and modules to Indian SPDs.  
7.3.4.5  Alternative measures  
7.369.  The second step of a necessity analysis (which, as noted, the parties also apply to the 
"essential" requirement) asks whether "a WTO-consistent alternative measure which the Member concerned could 'reasonably be expected to employ' is available or whether a less WTO-
inconsistent measure is 'reasonably available'".
835 In other words, it must be demonstrated that no 
alternative measure is reasonably available.836 We will proceed to provide an overview of the 
arguments and information presented by the parties on this issue.  
7.370.  The United States argues that there are a number of alternative measures that India could 
take that would contribute to ensuring Indian SPDs' access to a continuous and affordable supply of the solar cells and modules needed to generate solar power, including alternative measures to increase India's domestic manufacturing capacity  for solar cells and modules. According to the 
United States, these include: (a) removing barriers to trade and investment in solar cells and 
modules; (b) stockpiling solar cells and modules; (c) entering into long term contracts with suppliers of solar cells and modules; (d) direct subsidisation of domestic manufacturers of cells 
and modules; (e) investing in research & development in solar cells and modules; and (f) 
increasing domestic demand for solar cells and modules. 
7.371.  India argues that these alternative measures are either already in place, not reasonably 
available to India, or would not make the same cont ribution to the achievement of its objective, at 
its desired level of protection. According to Indi a, "other than the DCR Measures, India does not 
have any assured way in which to achieve its legitimate policy objectives".
837 India submits that 
                                               
835 Appellate Body Reports, Korea – Various Measures on Beef , para. 166; EC – Seal Products , 
para. 5.261. 
836 See Panel Reports, EC – Seal Products , para. 7.639, upheld by the Appellate Body in para. 5.290 of 
its Reports in EC – Seal Products . 
837 India's second written submission, para. 74. WT/DS456/R 
 
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  "[i]nherent in the nature of each of these alte rnatives is that their outcome is unpredictable".838 
India submits that it cannot leave a goal as critical as energy security "to the chance and e x p e c t a t i o n  t h a t  d o m e s t i c  m a n u f a c t u r i n g  f a c i l i t i e s  w i l l  i n  f a c t  b e  s e t  u p  i n  I n d i a  t o  e n s u r e  t h e  country's resilience to the uncertainties of imports of solar cells and modules that are so intrinsic 
to solar power development".
839 Therefore, India argues, none of the alternatives identified by the 
United States meet "the desired level of protection  that India seeks with respect to its legitimate 
policy objectives".840 
7.372.  A first proposed alternative measure identified by the United States is maintaining no 
limitations on foreign direct investment in the solar technology sector and reducing import duties on equipment used to manufacture solar cells and modules. The United States argues that such measures would facilitate foreign producers of ce lls and modules in setting up manufacturing sites 
in India, and that reducing import duties on equipment used to manufacture solar cells and 
modules operates to effectively reduce the cost of manufacturing cells and modules in India.
841 
India responds that it has already enacted measures to incentivise and promote imports, 
including: (a) fiscal incentives; (b) a memorandum of understanding between the Indian 
Renewable Energy Development Agency and the Expo rt-Import Bank of the United States; (c) the 
absence of limitations on foreign direct investments in the renewable energy sector; and (d) the 
reduction of import duties on a variety of equi pment and machinery required for manufacturing of 
cells and modules, and excise and custom duty ex emptions for solar cells and modules as well as 
other equipment used in solar power generation.842 However, India argues that these incentives 
are in themselves insufficient "to ensure development of manufacturing of solar cells and 
modules".843 According to India, these incentives "hav e unpredictable outcomes", as they "cannot 
ensure" that private entities are motivated and encouraged to manufacture in India.844  
7.373.  A second proposed alternative measure is acquiring a reserve of solar cells and modules by 
importing a surplus of such products for the purpose of stockpiling.845 India claims that solar cells 
and modules, especially the back sheets and laminating materials of solar modules, degrade when stored.
846 Furthermore, India responds that this is not a reasonably available alternative because 
stockpiled solar cells and modules would become ob solete in less than two years, due to rapidly 
advancing technology, which would lead to an unrecoverable, prohibitive cost.847 The United States 
disputes India's arguments concerning the possibl e degradation of solar cells and modules, and 
submits that finished modules are typically sold with a warranty of 25 years, giving the promise 
that they will last 25 years in the full range of conditions experienced outdoors (subjected to sun, 
wind, rain, etc.).848 The United States also argues that a situation of short supply could constitute 
a situation in which users would accept less technologically advanced products849, and that 
"intelligent stockpiling" in which older models are periodically sold off and replaced by newer 
models would alleviate the cost of stockpiling.850  
7.374.  A third proposed alternative measure identified by the United States is securing dedicated 
import sources by entering into long term contracts with foreign suppliers. India claims that, 
because long term contracts are not standard industry practice and because of technological 
                                               
838 India's second written submission, para. 82. 
839 India's second written submission, para. 83. 
840 India's second written submission, para. 86. 
841 United States' response to Pa nel question No. 37, para. 60. 
842 India's first written submission, para. 236 (subheading (iv), fourth and fifth bullet points); India's 
second written submission, paras. 75 and 81. 
843 India's first written submission, para. 236 (subheading (v), fifth bullet point). 
844 India's second written submission, para. 82. 
845 United States' response to Pa nel question No. 37, para. 61; United States' second written 
submission, para. 42; United States' opening statement at the second meeting of the Panel, para. 35; United States' response to Panel question No. 73(b). 
846 India's second written submission, paras. 78-79 and 84. 
847 India's second written submission, paras. 76-77 and 79. 
848 United States' opening statement at the second meeting with the Panel, para. 35 (citing Jordan, D. 
C., Sekulic, B., Marion, B., & Kurtz, S. R, Performance and Aging of a 20-Year-Old Silicon PV System , IEEE 
Journal of Photovoltaics (2015), (Exhibit USA-37; and Ndiaye, A., Charki, A., Kobi A., Ke´be´, C., Ndiaye P., Sambou, V., Degradations of silicon photovoltaic modules: A literature review (2013), (Exhibit USA-38)); 
United States' response to Panel question No. 73(b), paras. 75-77. 
849 United States' response to Pa nel question No. 73(b), para. 76. 
850 United States' response to Pa nel question No. 73(b), para. 78. WT/DS456/R 
 
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  strides and price fluctuations, it does not make sense from an economic or practical perspective to 
enter into long term contracts.851 India argues that the volatility in the solar cells and modules 
market has led to manufacturers' bankruptcy, and that long term contracts would not protect India from such bankruptcy, from closing factories, or from the specific producers' inability to supply 
solar cells and modules in a global market.
852 Therefore, India argues, long term contracts with 
foreign suppliers in such a scenario "[do] not hold any guarantee for long-term availability of such cells and modules".
853 
7.375.  A fourth proposed alternative measure is di rect subsidisation of domestic manufacturers of 
cells and modules. The United States argues that India's claim that it cannot afford to grant direct subsidies to solar cell and modules manufactures is belied by the substantial payments that India is currently making to SPDs through feed-in tariff and VGF schemes.
854 India asserts that subsidies 
are not an economically feasible option for a developing country with limited resources.855 India 
further explains that the economics of resorting to  VGF to enable bringing down the costs of solar 
power generation, on the one hand, and providing direct production subsidies to manufacturers of 
cells and modules, on the ot her, is "vastly different".856 
7.376.  A fifth proposed alternative measure identified  by the United States is investing in research 
and development of solar or other renewable technologies.857 India has noted that "the JNNSM 
Mission Document also notes the importance of technically qualified manpower of international 
standard, both for applied, and research and development sectors".858 India submits that R&D 
related work is in fact already being done; howe ver, R&D can only focus on new technologies, and 
does not in any manner act as a way in which domestic manufacturing of cells and modules using 
existing technologies could be achieved.859 
7.377.  A sixth alternative measure identified by the United States is to increase domestic 
manufacturing capacity by increasing domestic demand. The United States notes that the National 
Solar Mission would likely stimulate significant expansion of domestic demand for solar cells and 
modules, and the European Union expressed a similar view.860 India agrees that the creation of 
demand for solar power is an incentive for domestic manufacturing. However, India underscores 
that, this in itself is insufficient "and in fact, unpredictable, since there is no certainty" that 
manufacturing facilities will in fact be set up in India.861 
7.378.  We observe that the alternative measures identified by the United States include 
alternative measures to reduce the risk of a disrup tion in imports of foreign solar cells or modules, 
as well as alternative measures to increase the supply of domestically-produced solar cells and 
modules. They include measures that are currently being taken by India, as well as hypothetical 
alternative measures that, in the United States' view, India could take.  
7.379.  We consider that an evaluation of the alternative measures would require a comparison of 
their trade-restrictiveness with that of the DCR measures, as well as a determination as to their reasonable availability, and whether they make an equivalent contribution to the relevant 
objective. We do not understand India to dispute that each of these alternative measures would be 
less trade-restrictive than the DCR measures, and that each of these alternative measures is prima 
facie WTO-consistent. The issues in dispute are whether some of these alternative measures are 
"reasonably available" to India, and whether the alternative measures would make the same 
contribution to the realization of India's objective,  and desired level of protection, as that made by 
the DCR measures. 
                                               
851 India's response to Panel question No. 73(c), para. 100. 
852 India's response to Panel question No. 73(c), para. 99. 
853 Ibid. 
854 United States response to Pa nel question No. 73(a), para 71. 
855 India's first written submission, para. 236 (subheading (iv)). 
856 India's comments on the United States' response to Panel question No. 73(a), paras. 79-81. 
857 United States response to Pa nel question No. 73(a), para 71. 
858 India's first written submission, para. 194. 
859 India's comments on the United States' resp onse to Panel question No. 73(a), para. 82. 
860 United States' response to Pa nel question No. 73(a), para. 73.  European Union's third-party 
submission, para. 76. 
861 India's second written submission, para. 80. WT/DS456/R 
 
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  7.380.  We have concluded that the effect of the DCR measures is uncertain and unpredictable 
with respect to the realization of India's objectiv e of ensuring a continuous and affordable supply 
of solar cells and modules to Indian SPDs. Specifically, we have concluded that the information before the Panel does not enable us to assess the extent to which the DCR measures could lead to 
some increased domestic manufacturing capacity of solar cells and modules in the long term, or 
the extent to which any such increased domestic manufacturing capacity would in turn contribute to reducing the risk of a disruption in Indian SPDs' ability to access to a continuous and affordable 
supply of the solar cells and modules.  
7.381.  Accordingly, we consider that the information before the Panel is insufficient to reach a 
conclusion on the extent to which the alternative measures identified by the United States would 
contribute to the realization of India's objective, and desired level of protection, as compared with 
any contribution being made by the DCR measures. 
7.3.4.6  Conclusion 7.382.  In the event that our findings on the th reshold legal elements under Articles XX(j) and 
XX(d) are modified or reversed on appeal, we have conducted a limited review of whether the DCR 
measures are "essential" or "necessary" within the meaning of Articles XX(j) and XX(d) respectively. This limited analysis and review has involved identifying the different issues that 
would need to be considered to make definitive findings, the parties' positions on those different 
issues, and our factual findings on those issues based on the arguments of the parties and the information provided to the Panel. For the reasons given above, we consider it unnecessary to reach any overall conclusion, or make any finding, on these issues.  
7.3.5  Chapeau of Article XX of the GATT 1994 
7.383.  It is well established that a panel must first examine whether a challenged measure falls 
under one of the exceptions listed in the various sub-paragraphs of Article XX; if a measure is 
found to be provisionally justified under one or mo re of the various sub-paragraphs of Article XX, 
then a panel must then proceed to examine, as a second step, whether that measure satisfies the 
requirements of the chapeau of Article XX. For an Article XX defence to succeed, both elements of 
the two-tiered test must be met.862 The chapeau of Article XX of the GATT 1994 provides that 
nothing in the GATT shall be construed to prevent the adoption or enforcement of measures covered by one or more sub-paragraphs in Article XX: 
Subject to the requirement that such measures are not applied in a manner which would 
constitute a means of arbitrary or unjustifiable discrimination between countries where 
the same conditions prevail, or a disguised restriction on international trade… 
7.384.  India submits that the DCR measures are not applied in a manner which would constitute a 
means of arbitrary or unjustifiable discrimination between countries where the same conditions 
prevail, or a disguised restriction on international trade.
863 India states that "the impact on trade is 
minimal, and limited only to the extent of achieving India's legitimate objectives relating to energy 
security, sustainable development an d ecologically sustainable growth".864 India recalls that of the 
total 2775 MW of solar PV installed capacity in In dia, domestically manufactured cells and modules 
under the DCR Measures account for only 140 MW , and that over 90% of India's solar PV 
installations are based on imported cells and modules.865 India repeats that it has encouraged and 
incentivized imports of solar cells and modules.866 India reiterates its argument that the DCR 
measures are "important for India's pursuit of its objectives of energy security, sustainable development, and ecologically sustainable growth, by improving its resilience to the uncertainties 
                                               
862 Appellate Body Reports, US – Gasoline , p. 22; US – Shrimp , paras. 119-120; Brazil – Retreaded 
Tyres , para. 139. 
863 India's first written submission, paras. 264-273; India's Response to Panel question No. 38; India's 
second written submission, paras. 145-154; India's open ing statement at the second meeting of the Panel, 
paras. 38-39. 
864 India's first written submission, para. 270. 
865 India's first written submission, para. 271. India's response to Panel question Nos. 38(a) and (c); 
India's second written submission, paras. 145-150 and 152-153. 
866 India's first written submission, para. 272. WT/DS456/R 
 
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  of imports of critical components such as solar cells and modules".867 India also reiterates its view 
that "a developing economy does not have the cash resources to directly provide subsidies to its SPDs or to manufacturers of solar cells and modules".
868  
7.385.  India concludes that its DCR measures "are therefore applied in a carefully calibrated 
manner" to facilitate the development by domestic manufacturers of some manufacturing capacity 
that can contribute towards India's overall objectives of ensuring energy security in a sustainable manner.
869 India also characterizes the DCR measures as measures applied in a "careful", 
"reasonable", and "very limited manner".870 India reiterates that its measure "is not a ban on 
imports".871 At the same time, India clarifies that it does not hold the view that there is a 
"quantitative threshold" for finding "arbitrary or unjustifiable discrimination" under the chapeau of Article XX.
872 India adds that the publication of the dr aft guidelines under Phases I and II of the 
NSM indicates that the DCRs are not concealed or unannounced, and to that extent, are not 
disguised restrictions on trade.873  
7.386.  The United States suggests that India has not met its burden of demonstrating that the 
DCR measures are applied in accordance with the requirements of the chapeau.874 However, the 
United States did not advance any argumentation with respect to the requirements of the chapeau, and has not specifically responded to India's arguments under the chapeau.  
7.387.  The European Union argues that although India connects its overall strategy of promoting 
the use of solar energy through the National So lar Mission and other measures with legitimate 
objectives such as the protection of the environm ent, sustainable developm ent and the security of 
energy supply, the specific measures at issue, namely the DCR measures, could only be connected 
with the aim of favouring domestic manufacturers of solar cells and modules. The European Union 
submits, therefore, that the latter aim, and not th e more general aims identified by India as its 
policy objectives, should be seen as the "cause" or the "rationale" of discrimination for the purpose 
of the chapeau of Article XX. Such a rationale sh ould, in the view of the European Union, be 
described as arbitrary and unjustifiable.
875 The European Union adds that India's submission 
regarding the "allegedly minimal impact" of the measures at issue on trade should be read in light 
of the findings of the Appellate Body in Brazil – Retreaded Tyres  rejecting an interpretation of the 
term "unjustifiable" under the chapeau that would depend on the effects  of the discrimination.876 
The European Union further argues that if it we re established that India failed to explore non-
discriminatory alternatives to the imposition of the DCR measures that could equally achieve aims 
such as sustainable development and the security of  energy supply, "such an omission could be in 
itself described as a disguised restriction [on] trade".877 Finally, the European Union submits that, 
if discriminating against imports with the express aim of favouring domestic industry were 
acceptable under the specific exceptions and the chapeau  of Article XX, then the notion of 
preventing "arbitrary or unjustifiable discrimination" and "disguised restrictions on trade" would be devoid of content, as protectionism of that nature "is precisely what the chapeau  is meant to 
control".
878 
7.388.  Japan submits that "[t]here are some paragraphs regarding the chapeau in India's first 
written submission", but that "India has offered very little or almost no defense of its domestic content requirements measures under the chapeau" . Japan submits that India has therefore failed 
                                               
867 India's first written submission, para. 272. 
868 India's first written submission, para. 273. 
869 India's first written submission, para. 273.. 
870 India's response to Panel question No. 38(a). 
871 India's response to Panel question No. 38(a). 
872 India's response to Pane question No. 38(c). 
873 India's second written submission, para. 154. 
874 United States' opening statement at the first meeting of the Panel, para. 40. 
875 European Union's third-pa rty submission, para. 80. 
876 European Union's third-pa rty submission, para. 81 (cit ing Appellate Body Report, Brazil – Retreaded 
Tyres , para. 229). 
877 European Union's third-pa rty submission, para. 82 (cit ing Appellate Body Report, US – Gasoline ). 
878 European Union's third-pa rty submission, para. 83. WT/DS456/R 
 
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  to demonstrate how a Member could justify the use of import substitution measures – "essentially 
protectionist policies" – under the chapeau of Article XX.879 
7.389.  We have already found that India has failed to demonstrate that the DCR measures fall 
within the scope of Articles XX(j) or XX(d). We further note that the arguments that India 
advances in connection with the requir ements of the chapeau of Article XX880 are essentially a 
repetition of the arguments that it presents in relation to the issue of whether solar cells and modules are "essential to the acquisition or distribution of products in general or local short 
supply" under Article XX(j), and "necessary to secure compliance with laws or regulations" under 
Article XX(d). As a consequence, we have alre ady addressed the substance of these arguments 
and factual assertions in the preceding sections of this Report.  
7.390.  Based on the foregoing, we see no compelling reason to proceed with any further 
examination of the DCR measures under the chapeau of Article XX of the GATT 1994, and we 
therefore refrain from doing so.  
8  CONCLUSIONS AND RECOMMENDATION  
8.1.  The measures at issue in this dispute (the DCR measures) are the domestic content 
requirements imposed by India under Phase I (Batch  1), Phase I (Batch 2), and Phase II (Batch 1) 
of the National Solar Mission, which are incorporated or otherwise reflected in various documents 
within each Batch, including the Guidelines  and Request for Selection  documents, the model power 
purchase agreement, and the individually execut ed power purchase agreements between Indian 
government agencies and solar power developers. 
8.2.  For the reasons set forth in this Report, the Panel concludes that: 
a. the DCR measures are inconsistent with Article 2.1 of the TRIMs Agreement and 
Article III:4 of the GATT 1994, and are not cove red by the derogation in Article III:8(a) 
of the GATT 1994; and 
b. the DCR measures are not justified under the general exceptions in Article XX(j) or 
Article XX(d) of the GATT 1994.  
8.3.  Under Article 3.8 of the DSU, in cases wh ere 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 Article 2.1 of the TRIMs Agreem ent and Article III:4 of the GATT 1994, they have 
nullified or impaired benefits accruing to the United States under those agreements. 
8.4.  Pursuant to Article 19.1 of the DSU, we recommend that India bring its measures into 
conformity with its obligations under the TRIMs Agreement and the GATT 1994. 
 
__________  
                                               
879 Japan's third-party submission, para. 23. 
880 See paras. 7.384.  to 7.385.