WT/DS456/9  
 
25 April 2016  
(16-2314)  Page: 1/3  
  Original: English  
 
 INDIA – CERTAIN MEASURES RELATING TO SOLAR CELLS AND SOLAR MODULES 
NOTIFICATION OF AN APPEAL BY INDIA 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following communication, dated 20 April 2016,  from the delegation of India, is being 
circulated to Members. 
 
_______________ 
 
 
 Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  ( t h e  " D S U " )  a n d  R u l e  2 0  o f  t h e  Working Procedures for 
Appellate Review  (WT/AB/WP/6) ("Working Procedures"), India hereby notifies its decision to 
appeal certain issues of law covered by in the panel report in India– Certain Measures relating to 
Solar Cells and Solar Modules (WT/DS456/R) ("Panel Report"), and certain legal interpretations 
developed by the Panel in this dispute. 
  Pursuant to Rules 20(1) and 21(1) of the Work ing Procedures, India files this Notification 
together with its Appellant's Submission with the Appellate Body Secretariat. 
   
 For the reasons to be elaborated in its submissions to the Appellate Body, India appeals the following errors of law and legal interpretation contained in the Panel Report and requests the 
Appellate Body to reverse the related findings, conclusions and recommendations of the Panel, and 
where indicated, to complete the analysis.
1 
 
I THE PANEL ERRED IN ITS FINDING THAT  ARTICLE III:8(A) OF THE GATT 1994 IS 
NOT APPLICABLE TO THE DCR MEASURES  
1. India appeals the Panel's conclusion that the DC R measures are not covered by the derogation 
under Article III:8(a) of the GATT 1994 for the following reasons:  
i. The Panel erred in not considering India's arguments that solar cells and modules are 
indistinguishable from solar power generation2, and that in its factual and legal 
assessment, it is not necessary to consider whether solar cells and modules qualify as 
"inputs" for solar power generation. The basis for the Panel's reasoning was that the Appellate Body in Canada – Renewable Energy / Feed-In Tariff Program , did not consider 
this issue
3, while ignoring the fact that this issue was not presented for consideration 
before the Appellate Body in that dispute.  
                                               
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, this Notice of Appeal provides an indicative 
list of the paragraphs of the Panel Report containing th e alleged errors of law and legal interpretation by the 
Panel in its report, without prejudice to India's ability to  rely on other paragraphs of the Panel Report in its 
appeal. 
2 Panel Report, paras. 6.24, 7.114 and 7.116. 
3 Panel Report, paras. 7.116-7.135, particularly paras. 7.116, 7.118, 7.123, 7.125, 7.126, 7.128. WT/DS456/9 
 
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  ii. The Panel erred in its conclusion that discrimination relating to solar cells and modules 
under the DCR measures is not covered by the derogation under Article III:8(a) of the GATT 1994.
4  
2. India requests the Appellate Body to find that the Panel acted inconsistently with Article 11 of 
the DSU in failing to consider and to make an objective assessment of India's arguments that: 
(i) solar cells and modules are indistinguishable from solar power generation, and (ii) solar cells and modules can be characterized as inputs for generation of solar power.
5 
3. India further requests the Appellate Body to reverse the Panel's findings that the derogation 
under Article III:8(a) of the GATT 1994 is not available for solar cells and modules since what 
the Government purchases is electricity generated from such cells and modules6 and instead 
complete the analysis to find that the DCR measures are covered by the derogation under 
Article III:8(a) of the GATT 1994.  
4. Should the Appellate Body hold that the DCR measures are covered by the derogation under 
Article III:8(a) of the GATT 1994, India requests the Appellate Body to complete the analysis 
under Article III:8(a) of the GATT 1994 and find that: 
i. The DCR measures are laws, regulations or  requirements governing procurement; 
ii. The procurement under the DCR measures is made by governmental agencies;  
iii. The procurement under the DCR measures is of products purchased for governmental 
purposes;  
iv. The procurement and purchase of products under the DCR measures is not with a view to 
commercial resale. 
5. Based on the above, India requests the Appellate  Body to find that the DCR measures are not 
inconsistent with Article 2.1 of the TRIMs Agreement and Article III:4 of the GATT 1994. 
II THE PANEL ERRED IN ITS FINDING THAT THE EXCEPTION UNDER ARTICLE XX(J) OF 
THE GATT 1994 IS NOT APPLICABLE TO THE DCR MEASURES  
1. Should the Appellate Body uphold the Panel's finding that the DCR measures are not covered 
by the derogation of Article III:8(a) of the GA TT 1994, India requests the Appellate Body to 
find that the Panel erred in its conclusion that the DCR measures are not justified under the 
general exception in Article XX(j) of the GATT 1994.7  
2. India also requests the Appellate Body to find that the Panel acted inconsistently with Article 
11 of the DSU in its assessment of India's argu ments on "sufficient manufacturing capacity"8; 
by disregarding India's justification with regard to the DCR measures, and substituting it with 
one which had no basis in India's submissions9; and in arriving at various conclusions based on 
a piecemeal and selective analysis of two report s without providing India due process rights to 
respond to its conclusions.10 
                                               
4 Panel Report, paras. 7.100-7.187, particularly paras. 7.135 and 7.187. 
5 Panel Report, para. 6.24, paras. 7.116-7.135, particularly paras. 7.116, 7.118, 7.123, 7.125, 7.126, 
7.128. 
6 Panel Report, paras.7.135 and 7.187. 
 7 Panel Report, paras. 6.30-6.31, paras. 7.188-7.265, paras. 7.337-7.390, particularly paras. 7.189, 
7.190, 7.207, 7.218, 7.236, 7.237, 7.265, 7.337-7.342, 7.346, 7.350, 7.354, 7.360-7.368, 7.380, 7.382, 7.389 and 7.390. 
8 Panel Report, para. 7.226. 
9 Panel Report, paras. 7.189, 7.190, 7.237, 7.337-7.342, 7.350, 7.351, 7.354, 7.360-7.363, 
7.366-7.368 and 7.380. 
10 Panel Report, paras. 7.364-7.365 and para. 7.367. WT/DS456/9 
 
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  3. India requests the Appellate Body to reverse th e Panel's conclusion that the DCR measures are 
not justified under Article XX(j) of the GATT 1994 and to complete the analysis under Article XX(j) to find that: 
i. India's lack of manufacturing capacity of solar cells and modules amounts to a situation 
of local and general short supply of such prod ucts in India, and that the defence under 
Article XX(j) is available to it;  
ii. The DCR measures are essential for addressing the local and general short supply of solar 
cells and modules;  
iii. The DCR measures are justified under Article XX(j) of the GATT 1994 because they meet 
with the requirements of the chapeau of Article XX. 
III SUBSIDIARILY, THE PANEL ERRED IN IT S FINDING THAT THE DCR MEASURES ARE 
NOT JUSTIFIABLE UNDER ARTICLE XX(D) OF THE GATT 1994 
1. Should the Appellate Body find that the deroga tion under Article III:8(a) of the GATT 1994 is 
not available for India, and that the DCR measures  are not justifiable under Article XX(j) of the 
GATT 1994, then India requests the Appellate Body to find that the Panel erred in its 
conclusion that the DCR measures are not justified under the general exception in Article XX(d) of the GATT 1994.
11 
2. India requests the Appellate Body to reverse th e Panel's conclusion that the DCR measures are 
not justified under Article XX(d) of the GATT 1994 and to complete the analysis under Article XX(d) to find that: 
i. The international and domestic laws and regulations identified by India, constitute laws 
and regulations for the purpose of Article XX(d);  
ii. The DCR measures are necessary for securing compliance with the mandate under India's 
laws and regulations to achieve ecologically sustainable growth and sustainable 
development; and 
iii. The DCR measures are justified under Article XX(d) of the GATT 1994 because they meet 
with the requirements of the chapeau of Article XX. 
 
__________ 
 
 
                                               
 11 Panel Report, paras. 7.284-7.333, paras. 7.337-7.390, particularly paras. 7.298-7.301, 7.318, 7.319, 
7.333, 7.337-7.342, 7.350, 7.354, 7.360-7.368, 7.380, 7.382, 7.389 and 7.390.