WT/DS510/R  
 
27 June 2019 
(19-4304) Page: 1/100 
    
 
  
UNITED  STATES  — CERTAIN MEASURES RELATING  
TO THE RENEWABLE ENE RGY SECTOR  
REPORT  OF THE PANEL  
 
 
 WT/DS510/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ...........................  12 
1.1   Complaint by India  ................................ ................................ ...............  12 
1.2   Panel establishment and composition  ................................ .....................  12 
1.3   Panel proceedings  ................................ ................................ ................  12 
1.3.1   General  ................................ ................................ ...................  12 
1.3.2   Preliminary ruling on the Panel's terms of reference  .....................  13 
2   FACTUAL ASPECTS ................................ ................................ ........................  14 
2.1   Measure  1: Washington State additional incentive  ................................ ... 15 
2.2   Measure  2: California Manufacturer Adder  ................................ ...............  18 
2.3   Measure  4: Montana tax incentive ................................ ..........................  19 
2.4   Measure  5: Montana tax credit  ................................ ..............................  20 
2.5   Measure  6: Montana tax refund  ................................ .............................  21 
2.6   Measure  7: Connecticut additional incentive  ................................ ............  22 
2.7   Measure  8: Michigan Equipment Multiplier / Michigan Labour Multiplier  ....... 24 
2.8   Measure  9: Delaware Equipment Bonus / Delaware Workforce Bonus  .........  26 
2.9   Measure  10: Minnesota pr oduction incentives and rebates  ........................  27 
2.9.1   Minnesota solar energy production incentive (SEPI)  ......................  27 
2.9.2   Minnesota solar thermal rebate  ................................ ..................  28 
2.9.3   Minnesota solar photovoltaic (PV) rebate  ................................ ..... 29 
3   PARTIES' REQUEST S FOR FINDINGS AND R ECOMMENDAT IONS  ...................  30 
4   ARGUMENTS OF THE  PARTIES  ................................ ................................ ...... 30 
5   ARGUMENTS OF THE  THIRD PARTIES  ................................ ...........................  30 
6   INTERIM REVIEW  ................................ ................................ .........................  30 
7   FINDINGS  ................................ ................................ ................................ .... 30 
7.1   Measures amended or repealed following the establishment of the Panel  .... 30 
7.1.1   Measures amended following the estab lishment of the Panel ..........  31 
7.1.1.1    Overview of applicable principles  ................................ .... 32 
7.1.1.2    Measure  1: Washington  State additional incentive  ............  34 
7.1.1.3    Measure  2: California Manufacturer Adder  .......................  36 
7.1.1.4    Measure  8: Michigan Equipment Multiplier / Michigan Labour 
Multiplier  ................................ ................................ ..................  38 
7.1.1.5    Conclusion on measures amended following panel 
establishment ................................ ................................ ............  39 
7.1.2   Measures repealed following the establishment of the Panel  ..........  40 
7.1.2.1    Overview of applicable principles  ................................ .... 40 
7.1.2.2    Minnesota solar energy production incentiv e (SEPI) under 
Measure  10 ................................ ................................ ...............  41 
7.1.2.3    Minnesota solar thermal rebate under Measure  10 ............  42 
7.1.2.4    Conclusion on measures repealed following the establishment 
of the Panel  ................................ ................................ ..............  43 WT/DS510/R  
 
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  7.2   Order of analysis  ................................ ................................ .................  44 
7.3   India's claims under Article  III:4 of the GATT  1994 ................................ .. 45 
7.3.1   Introduction  ................................ ................................ ............  45 
7.3.2   Products at issue and "likeness"  ................................ .................  45 
7.3.2.1    Measure  1: Washington State additional incentive  ............  46 
7.3.2.2    Measure  2: California Manufacturer Adder  .......................  47 
7.3.2.3    Measure  4: Montana tax incentive  ................................ .. 48 
7.3.2.4    Measure  5: Montana tax credit  ................................ ....... 49 
7.3.2.5    Measure  6: Montana tax refund  ................................ ...... 50 
7.3.2.6    Measure  7: Connecticut additional incentive  .....................  50 
7.3.2.7    Measure  8: Michigan Equipment Multiplier / Michigan Labour 
Multiplier  ................................ ................................ ..................  51 
7.3.2.8    Measure  9: Delaware Equipment Bonus / Delaware Workforce 
Bonus  ................................ ................................ ......................  52 
7.3.2.9    Measure  10: Minnesota production incentives and rebates  . 53 
7.3.2.10    Conclusion on likeness  ................................ .................  54 
7.3.3   "Laws, regulations and requirements affecting the[] internal sale, 
offering for sale, purchase, transportation, distribution, or use" of relevant 
products  ................................ ................................ ............................  54 
7.3.3.1    "Laws, regulations and requirements"  .............................  54 
7.3.3.2    "Affecting the[] internal sale, offering for sale, purchase, 
transportation, distribution or use" of relevant products  .................  56 
7.3.3.2.1    Measure  1: Washington State ad ditional incentive  . 58 
7.3.3.2.2    Measure  2: California Manufacturer Adder  ............  59 
7.3.3.2.3    Measure  4: Montana tax incentive  .......................  60 
7.3.3.2.4    Measure  5: Montana tax credit  ............................  62 
7.3.3.2.5    Measure  6: Montana tax refund  ..........................  63 
7.3.3.2.6    Measure  7: Connecticut additional incentive  .........  64 
7.3.3.2.7    Measure  8: Michigan Equipment Multiplier / Michigan 
Labour Multiplier  ................................ ...............................  67 
7.3.3.2.8    Measure  9: Del aware Equipment Bonus / Delaware 
Workforce Bonus  ................................ ...............................  68 
7.3.3.2.9    Measure  10: Minnesota production incentives and 
rebates  ................................ ................................ ............  71 
7.3.3.3    Conclusion on "laws, regulations, and requirements affecting 
the[] internal sale, offering for sale, purchase, transport ation, 
distribution or use" of relevant products  ................................ ....... 72 
7.3.4   Less favourable treatment  ................................ .........................  72 
7.3.4.1    Measure  1: Washington State additional incentive  ............  74 
7.3.4.2    Measure  2: California Manufacturer Adder  .......................  75 
7.3.4.3    Measure  4: Montana tax incentive  ................................ .. 77 
7.3.4.4    Measure  5: Montana tax credit  ................................ ....... 79 
7.3.4.5    Measure  6: Montana tax refund  ................................ ...... 81 
7.3.4.6    Measure  7: Connecticut additional incentive  .....................  83 WT/DS510/R  
 
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  7.3.4.7    Measure  8: Michigan Equipment Multiplier / Michigan Labour 
Multiplier  ................................ ................................ ..................  85 
7.3.4.8    Measure  9: Delaware Equipment Bonus / Delaware Workforce 
Bonus  ................................ ................................ ......................  88 
7.3.4.9    Measure  10: Minnesota production incentives and rebates  . 89 
7.3.4.10    Conclusion on less favourable treatment  ........................  91 
7.3.5   Conclusion on India's cl aims under Article  III:4 of the GATT  1994 .. 91 
7.4   India's claims under the TRIMs and SCM  Agreements  ...............................  91 
7.4.1   India's claims under the TRIMs  Agreement  ................................ .. 93 
7.4.2   India's claims under the SCM  Agreement  ................................ .... 94 
7.4.2.1    Articles  3.1(b) and 3.2 of  the SCM  Agreement  ..................  94 
7.4.2.2    Article  25 of the SCM  Agreement  ................................ .... 97 
7.5   India's claim under Article  XXIII:1(a) of the GATT  1994............................  98 
8   CONCLUSIONS AND RECOMMENDATIONS  ................................ ....................  98 
 
 WT/DS510/R  
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
ANNEX B 
ARGUME NTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of India  11 
Annex  B-2 Second integrated executive summary of the arguments of India  22 
Annex B -3 First integrated executive summary of the arguments of the United States  30 
Annex B -4 Second integrated executive summary of the arguments of the United States  40 
 
ANNEX C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  48 
Annex  C-2 Integrated executive summary of the arguments of China  50 
Annex  C-3 Integrated executive summary of the arguments of the European  Union  53 
Annex C-4 Integrated executive summary of the arguments of Japan  56 
Annex C-5 Integrated executive summary of the arguments of Norway  60 
 
ANNEX D  
PRELIMINARY  RULING  OF THE PANEL  
Contents  Page  
Annex  D-1 Preliminary ruling of the Panel (27 September 2018)  63 
 
ANNEX E 
INTERIM REVIEW  
Contents  Page  
Annex  E-1 Interim Review  86 WT/DS510/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Financial 
Services  Appellate  Body Report, Argentina – Measures Relating to Trade in Goods and 
Services , WT/DS453/AB/R  and Add.1,  adopted 9 May 2016, DSR 2016:II, p. 431  
Argentin a – 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 – Hides and 
Leather  Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and the 
Import of Finished Leather , WT/DS155/R  and Corr.1 , adopted 16 February 2001, 
DSR 2001:V, p. 1779  
Australia – Salmon  Appellate  Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R , adopted 6 November 1998, DSR 1998:VIII, p. 3327  
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 – Taxation  Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges , 
WT/DS472/R , Add.1 and Corr.1 / WT/DS497/R , Add.1 and Corr.1, adopted 11 
January 2019, as modified by Appellate  Body Reports WT/DS472/AB/R / 
WT/DS497/AB/ R 
Canada – Autos  Appellate  Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R , WT/DS142/AB/R , adopted 19 June 2000, 
DSR 2000:VI, p. 2985  
Canada – Autos  Panel Report, Canada – Certain Measures Affecting the Autom otive 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 ( Article  21.5 
– New Zealand  and US)  Appellate  Body Report, Canada – Measures Affecting the Importation of Milk and 
the Exportation of Dairy Products – Recourse to Article  21.5 of the DSU by 
New Zealand  and the United  States , WT/DS103/AB/RW , WT/DS113/AB/RW , 
adopted 18 December 2001, DSR 2001:XIII, p. 6829  
Canada – Renewable Energy 
/ Canada – Feed-in Tariff 
Program  Appellate  Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 24 May 2013, 
DSR 2013:I, p. 7  
Canada – 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 , adopt ed 23 October 
2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)  
China – Agricultural 
Producers  Panel Report, China – Domestic Support for Agricultural Producers , WT/DS511/R  
and Add.1, adopted 26 April 2019  
China – 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/D S339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, DSR 2009:I, p. 119  
China – Publications and 
Audiovisual Products  Panel Report, China – Measures Affecting Trading Rights and Distribution Services 
for Certain Publications and 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 – 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  WT/DS510/R  
 
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  Short Title  Full Case Title and Citation  
EC – Asbest os Appellate  Body Report, European  Communities  – Measures 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 – 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 – Export Subsidies  on 
Sugar  Appellate  Body Report, European  Communities  – Export Subsidies on Sugar , 
WT/DS265/AB/R , WT/DS266/AB/R , WT/DS283/AB/R , adopted 19 May 2005, 
DSR 2005:XIII, p. 6365  
EC – Export Sub sidies on 
Sugar (Brazil)  Panel Report, European  Communities  – Export Subsidies on Sugar, Complaint by 
Brazil , WT/DS266/R , adopted 19 May 2005, as modified by Appellate  Body Report 
WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, p. 6793  
EC – Export Subsidies on 
Sugar (Thailand)  Panel Report, European  Communities  – Expor t Subsidies on Sugar, Complaint by 
Thailand , WT/DS283/R , adopted 19 May 2005 , as modified by Appellate  Body 
Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, 
p. 7071 
EC – Fasteners (China)  Panel Report, European  Communities  – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, adopted 28 
July 2011, as modified by Appellate  Body Report WT/DS397/AB/R, 
DSR 2011:VIII, p. 4289  
EC – IT Products  Panel Reports, European  Communities  and its member 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  
EC – Sardines  Panel Report, European  Communities  – Trade Description of Sardines , 
WT/DS231/R  and Corr.1, adopted 23 October 2002, as modified by 
Appellate  Body Report WT/DS231/AB/R, DSR 2002:VIII, p. 3451  
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, DSR 2014:I, p. 7  
EC – Selected Custom s 
Matters  Appellate  Body Report, European  Communities  – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11 December 2006, DSR 2006:IX, p. 3791  
EU – Fatty Alcohols 
(Indonesia)  Appellate  Body Report, European  Union  – Anti-Dumping Measures on Imports of 
Certain Fatty Alcohols from Indonesia , WT/DS442/AB/R  and Add.1, adopted 
29 September 2017, DSR 2017:VI, p. 2613  
EU – PET (Pakistan)  Appellate  Body Report, European  Union  – Countervailing Measures on Certain 
Polyethylene Terephthalate from Pakistan , WT/DS486/AB/R  and Add.1, adopted 
28 May 2018  
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)  Appellate  Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R , adopted 16 January 1998, 
DSR 1998:I, p.  9 
India – Solar Cells  Panel Report, India – Certain Measures Relating to Solar Cells and Solar Modules , 
WT/DS456/R  and Add.1, adopted 14 October 2016, as modified by 
Appellate  Body Report WT/DS456/AB/R, DSR 2016:IV, p. 1941  
Indonesia – Autos  Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry , 
WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1 and Corr.2, adopted 
23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201  
Italy – Agricultural 
Machinery  GATT Panel Report, Italian Discrimination Against Imported Agricultural 
Machinery , L/833, adopted 23 October 1958, BISD 7S/60  
Japan – Agricultural 
Products II  Appellate  Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R , adopted 19 March 1999, DSR 1999:I, p. 277  
Japan – Alcoholic B everages 
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  
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and 
Paper , WT/DS44/R , adopted 22 April 1998, DSR 1998:IV, p. 1179  
Korea – Alcoholic Beverages  Appellate  Body Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/AB/R , 
WT/DS84/AB/R , adopted 17 February 1999, DSR 1999:I, p. 3  WT/DS510/R  
 
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  Short Title  Full Case Title and Citation  
Korea – Various Measures 
on Beef  Appellate  Body Report, Korea – Measures Affec ting Imports of Fresh, Chilled and 
Frozen Beef , WT/DS161/AB/R , WT/DS169/AB/R , adopted 10 January 2001, 
DSR 2001:I, p. 5  
Mexico – Corn Syrup 
(Article  21.5 – US) Appellate  Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United  States  – Recourse to Article  21.5 of the DSU  
by the United  States , WT/DS132/AB/RW , adopted 21 November 2001, 
DSR 2001:XIII, p. 6675  
Mexico – Taxes on Soft 
Drinks  Appellate  Body Report, Mexico – Tax Measures on Soft Drinks and Other 
Beverages , WT/DS308/AB/R , adopted 24 Ma rch 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/DS3 08/AB/R, DSR 2006:I, p. 43  
Russia – Pigs (EU)  Panel Report, Russian Federation – Measures on the Importation of Live Pigs, 
Pork and Other Pig Products from the European  Union , WT/DS475/R  and Add.1, 
adopted 21 March 2017, as modified by Appellate  Body Report WT/DS475/AB/R, 
DSR 2017:II, p. 361  
Russia – Tariff Treatment  Panel Report, Russia – Tariff Treatment of Certain Agricultural and Manufacturing 
Products , WT/DS485/R , Add.1, Corr.1, and Corr.2, adopted 26 September 2016, 
DSR 2016:IV, p. 1547  
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 
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice , WT/DS334/ R, 
adopted 22 October 2007, DSR 2007:VI, p. 2151  
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  
US – Certain EC Products  Appellate  Body Report, United  States  – Import  Measures on Certain Products 
from the European  Communities , WT/DS165/AB/ R, adopted 10 January 2001, 
DSR 2001:I, p. 373  
US – Clove Cigarettes  Panel Report, United  States  – Measures Affecting the Production and Sale of 
Clove Cigarettes , WT/DS406/R , adopted 24 April 2012, as modified by 
Appellate  Body Report WT/DS406/AB/R, DSR 2012:XI, p. 5865  
US – COOL  Panel Reports, United  States  – Certain Country of  Origin Labelling (COOL) 
Requirements , WT/DS384/R  / WT/DS386/R , adopted 23 July 2012, as modified 
by Appellate  Body Reports WT/DS384/AB/R / WT/DS386/AB/R, DSR 2012:VI, 
p. 2745 
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 – Large Civil Aircraft (2nd 
complaint) ( Article  21.5 – 
EU) Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft 
(Second Complaint) – Recourse to Article 21.5 of the DSU by the European Union , 
WT/DS353/RW  and Add.1, adopted 11 April 2019, as modified by Appellate Body 
Report WT/DS 353/AB/R W 
US - Lead and Bismuth II  Appellate  Body Report, United  States  – Imposition of Countervailing Duties on  
Certain Hot -Rolled Lead and Bismuth Carbon Steel Products Originating in the 
United Kingdom , WT/DS138/AB/R , adopted 7 June 2000, DSR 2000:V, p. 2595  
US – Section  337 GATT Panel Report, United  States  – Section  337 of the Tariff Act of 1930 , L/6439, 
adopted 7 November 1989, BISD 36S/345  
US – Upland Cotton  Appellate  Body Report, United  States  – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3  
US – Wool Shirts and 
Blouses  Appellate  Body Report, United  States  – Measure  Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, and 
Corr.1, DSR 1997:I, p. 323  
US – Zeroing (Japan) 
(Article  21.5 – Japan)  Appellate  Body Report, United  States  – Measures Relating to Zeroing and Sunset 
Reviews – Recourse to Article  21.5 of the DSU by Japan , WT/DS322/AB/RW , 
adopted 31 August 2009, DSR 2009:VIII, p. 3441  WT/DS510/R  
 
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  EXHIBITS REFERRED TO  IN THIS REPORT  
Exhibit  No. Short title  
(where applicable)  Title 
IND-1 Senate Bill 5101  Substitute Senate Bill No. 5191, 2005, c 300  
IND-3 Washington Administrative 
Code, Section  458-20-273 Washington Administrative Code, WAC 458-20-273 
IND-4 Senate Bill 5939  Substitute Bill 5939  
IND-5  Revised Code of Washington, Chapter 82.16, revised by 
Senate Substitute Bill 5939  
IND-13  Assembly Bill No. 2267, Chapter 537, 21 February 2008  
IND-15 2017 SGIP Handbook  Self-Generation Incentive Program Handbook, Self -
Generation Incentive Program, 18 December 2017  
IND-16 2016 SGIP Handbook  Self-Generation Incentive Program Handbook, Self -
Generation Incentive Program, 8 February 2016  
IND-18  Self-Generation Incentive Pro gram, SGIP Approved CA 
Suppliers, 22 April 2016  
IND-31 Montana Annotated Code, 
Section  15-70-502 Montana Code Annotated, Title 15, Chapter 70, Part 5 
(Ethanol Tax Incentives and Administration), 15 -70-502 
IND-32 Montana Annotated Code, 
Section  15-70-503 Montana Code Annotated, Title 15, Chapter 70, Part 5 
(Ethanol Tax Incentives and Administration), 15 -70-503 
IND-33 Montana Annotated Code, 
Section  15-70-401 Montana Code Annotated, Title 15, Chapter 70, Part 4 
(Gasoline and Special Fuel Tax), 15 -70-401 
IND-34 Montana Annotated Code, 
Section  15-70-522 Montana Code Annotated, Title 15, Chapter 70, Part 4 
(Ethanol Tax Incentives and Administration), 15 -70-522 
IND-37 Montana Annotated Code, 
Section  15-70-433 Montana Code Annotated, Title 15, Chapter 70, 15 -70-
433 
IND-42  Connecticut Green Bank, Request for Qualification and 
Program Guidelines, Residential Solar Investment 
Program  
IND-43 Michigan Public Act No. 295  State of Michigan, Senate Bill No. 213 
IND-44 Michigan Public Act No. 342  State of Michigan, Senate Bill No. 438 
IND-48 Michigan Case No. U -15800, 
Temporary Order  State of Michigan, Case No. U -15800, Michigan Public 
Service Commission -Temporary Order  
IND-54 Delaware Code, Title 26, 
Chapter 1, Subchapter III -A Renewable Energy Portfolio Standards Act, 2005 as 
incorporated in Delaware Code, Title 26, Chapter 1, 
Subchapter III -A 
IND-55  Rules and Procedures to Implement the Renewable 
Energy Portfolio Standard  
IND-58 Recommendations of the 
Renewable Energy Taskforce  State of Delaware, Recommendations on the Renewable 
Energy, May 2011  
IND-66 2016 Minnesota Statutes, 
Chapter 216C  Minnesota Statutes, Chapter 216C. Energy Planning and 
Conservation  
IND-90 Michigan Case No . U-15900, 
Michigan Public Service 
Commission – Order and Notice 
of Hearing, 27 April 2010  State of Michigan, Case No. U -15900, Michigan Public 
Service Commission – Order and Notice of Hearing, 27 
April 2010  
IND-91 Rate Book for Electric Service 
adopted by Consumers Energy 
Company and approved by the 
Michigan Public Service 
Commission  Consumer Energy Company, "Rate Book for Electric 
Service " Fourth Revised Sheet No. C -48.10, MPSC 
No.13 at Sheet Number C -48-10 
IND-95  PJM GATS, How do I sell RECs?  
IND-100  Senate Session Laws, Chapter 94, S.F. 1456  
IND-110  2016 Minnesota Statutes, Chapter 216C, 
Section  216C.416  
IND-116  Assembly Bill 2267 Sec. 5. (Amends) - Chaptered 
(Stats.2008 Ch.537)  
IND-117 California Assembly Bill 
No. 1637 Assembly Bill 1637 Section  1. (Amends) - Chaptered 
(Stats.2016 Ch.658)  
IND-123 Montana Annotated Code, 
Section  15-70-434 15-70-434. Approval or rejection of claim, Montana 
Annotated Code  
IND-124 General Statutes of 
Connecticut, Section  16-245ff Section  16-245 - Licensing of electric suppliers. 
Procedures. Penalties. Registration of electric 
aggregators. Procedures. Penalties. 2016 Connecticut 
General Statutes  WT/DS510/R  
 
- 10 - 
 
  Exhibit  No. Short title  
(where applicable)  Title 
IND-127 Application for Certification  Application for Certification of BONUS(es) to an existing 
Eligible Energy  Resource Under the Delaware 
Renewable Energy Portfolio Standard  
IND-132  Amended version of Chapter 82.16 of the Revised Code 
of Washington  
US-10  Montana Department of Transportation Records  
US-11  Montana Code Annotated, 15 -32-703 (2017)  
US-12  Montana Department of Revenue Memorandum on 
Biodiesel Blending and Storage Tax Credit (April 19, 
2018)  
US-20  Michigan Public Service Commission, Annual Report o f 
Implementation of PA 295 Renewable Energy Standard 
and the Cost -Effectiveness of the Energy Standards 
(February 15, 2017)  
US-28  Minnesota Department of Commerce Guidance for 
Completing the Made in Minnesota Solar Incentive 
Application - A 2017 Reference Guide for Applicants 
(December 30, 2016)  WT/DS510/R  
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
AES Advanced Energy Storage Technologies  
CPUC  California Public Utilities Code  
CRSIP  Connecticut Residential Solar Investment Program  
CSHWP  Massachusetts  Clean Energy Centre's Commonwealth Solar Hot Water Program  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
EPBB Expected Performance -Based Buydowns  
GATT  1994 General  Agreement  on Tariffs and Trade 1994  
LADWP  Los Angeles Department of Water and Power  
LAMC Adder  Los Angeles Manufacturing Credit  Adder  
MCA Montana Annotated Code  
MSIP Made in Minnesota Solar Incentive Program  
MWhs Megawatt -hours  
NAICS  North American Industry Classification System  
PBI Performance -Based Incentives  
PO Purchase Order  
PPA Power Purchase  Agreement  
PURA  Connecticut Public Utilities Regulatory Authority  
PV Photovoltaic  
RCW Revised Code of Washington  
RECIP  Washington Renewable Energy Cost Recovery Incentive Payment Program  
REC Renewable Energy Credits  
REPSA  Delaware Renewable Energy Portfolio Standards Act  
RESPM  Renewable Energy Standards Program in the State of Michigan  
SCM Agreement  Agreement on Subsidies and Cou ntervailing Measures  
SEPI Minnesota Solar Energy Production Incentive  
SGIP California Self -Generation Incentive Program  
SREC  Solar Renewable Energy Credit  
TIEP Montana Tax Incentive for Ethanol Production  
TRIMs  Trade -related investment measures  
TRIMs Agreement  Agreement on Trade -Related Investment Measures  
USD United States Dollar  
WAC Washington Administrative Code  
WTO World Trade Organization  
  WT/DS510/R  
 
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  1  INTRODUCTION  
1.1  Complaint by India  
1.1.  On 9 September 2016, India requested consultations with the United  States  concerning  the 
measures and claims set out below. India's consultations reques t was made pursuant to Articles  1 
and 4 of the Understanding on Rules and Procedures Governing the Settl ement of Disputes (DSU),  
Article  XXIII:1 of the General  Agreement  on Tariffs and Trade 1994 ( GATT  1994), Article  8 of 
the Agreement  on Trade -Related Investment Measures ( TRIMs Agreement ), and Articles  4, 7 and 
30 of the  Agreement  on Subsidies and Counterva iling Measures (SCM  Agreement ).1 
1.2.  Consultations were held on 16 and 17 November 2016 between India and the United  States . 
These consultations failed to resolve the dispute.2  
1.2  Panel establishment and composition  
1.3.  On 17 January 2017, India requested the establ ishment of a panel pursuant to Articles  4.7 
and 6 of the DSU, Article  XXIII of the GATT  1994, Articles  4.4 and 30 of the SCM  Agreement , and 
Article  8 of the TRIMs Agreement .3 At its meeting on 21 March 2017, the Dispute Settlement Body 
(DSB) established a panel pursuant to the request by India, in accordance with Article  6 of the DSU.4  
1.4.  The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by India in document 
WT/DS510/2 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in  those agreements.5 
1.5.  Brazil, China, the European  Union , Indonesia, Japan, the Republic of Korea, Norway, 
the Russian  Federation, the Kingdom of Saudi Arabia, Singapore, Chinese Taipei, and Turkey 
reserved their rights to participate in the  proceedings as th ird parties.6 
1.6.  On 11 April 2018, India requested the Director -General to determine the composition of the 
panel, pursuant to Article  8.7 of the DSU.7 
1.7.  On 24 April 2018, the Director -General accordingly composed the panel as follows8: 
Chairperson:  Mr Alberto Juan Dumont  
 
Members:   Ms Penelope Jane Ridings  
Mr Miguel Rodriguez Mendoza  
 
1.3  Panel proceedings  
1.3.1   General  
1.8.  On 15 May 2018, the Panel transmitted draft working procedures and a draft timetable to the 
parties. The Panel held an organizational meeting with the parties on 22 May 2018.  
1.9.  Following consultations with the parties, t he Panel adopted its Working Procedures and 
timetable on 6 June 2018. Upon India's request and in line with the United  States ' comments 
thereon, t hese Working Procedures were amended on 27 June 2018, to extend the deadlines for 
                                                
1 Request for consultations by India, WT/DS510/1 (India's consultation request).  
2 Request for the establishment of a panel by India, WT/DS510/2 (India's panel request).  
3 India's panel request, WT/DS510/2.  
4 DSB, Minutes of the meeting held on 21 March 2017, WT/DSB/M/394.  
5 Constitution note of the Panel, WT/DS510/3, para.  2. 
6 Constit ution note of the Panel, WT/DS510/3, para.  5. 
7 Constitution note of the Panel, WT/DS510/3, para.  3. 
8 Constitution note of the Panel, WT/DS510/3, para.  4. 
 WT/DS510/R  
 
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  submitting non-confidential summaries  of the parties' submissions by aligning the due dates with 
the due dates for submitting integrated executive summaries .9 The Panel further amended its 
timetable on 31 January 2019 , following consultations with the parties, in order to specify the dates  
for the final stages of the proceedings.  
1.10.   India and the United  States  submitted their first written submissions to the Panel on 26 June 
2018 and 7 August 2018 respectively. India subm itted a corrected version of its first written 
submission on 16 July 2018. The Panel also received third party written  submissions  from some of 
the third parties on 21 August 2018.10 
1.11.   The Panel held its first substantive meeting with the part ies on 9 and 10 October 2018. 
A session with the third parties took place on the morning of 10 October 2018.  
1.12.   Following these meetings, the Panel sent written questions to the parties and third parties on 
12 Octo ber 2018. The  Panel received written responses from the parti es and some of the third 
parties11 on 20  October  2018.  
1.13.   The parties submitted their first integrated executive su mmaries on 6 November 2018. 
The third parties also submitted their integrated executive summaries on th at day.12 
1.14.   The parties submitted their second written submissions on 27 November 2018.  
1.15.   The Panel held a second substantive meeting with the partie s on 22 January 2019. 
Following  this meeting, the Panel sent written questions to the par ties on 25  January 2019. The 
Panel received written response s from the parties on 12 February 2019, and comments on each 
other's written responses on 26 February 2019.  
1.16.   The parties submitted their second integrated executive summaries on 5 March 2019.  
1.17.   On 8 March 2019, the Panel issued the draft descriptive part of its Report to the parties. 
The parties provided written comments on this document on 20 March 2019.  
1.18.   The Panel issued its Interim Report to the parties on 25 April 2019. The parties submitted 
written requests for the Panel to review precise aspects of the In terim Report on 9 May 2019, and 
on 23 May 2019  the United States submitted written comments on some of India's requests.  
1.19.   The Panel issued its Final Report to the parties on 6 June 2019.  
1.3.2   Preliminary ruling  on the Panel's terms of reference  
1.20.   On 7 August 2018, as part of its first written submission, the United  States  requested the 
Panel to make  a preliminary ruling to exclude  from the Panel's terms of reference four  of the 
measures challenged by India.13 
1.21.   On 9 August 2018, the Panel provided the third parties with an opportunity to comment on 
the United  States ' request jointly with their third party written subm issions. On 21 August 2018, 
the Panel received third party written submissions from some of the third parties  addressing , inter 
alia, the preliminary issue s raised by the United  States .14 
1.22.   On 16 August 2018, India responded to the United  States ' preliminary ruling request.  
                                                
9 See Panel's Working Procedures in Annex A -1. 
10 Specifically, the Panel received third party written submissions from Brazil, the European Union, and 
Japan.  
11 Specifically, the Panel received written responses from Brazil, the European Union, Japan, and 
Norway.  
12 Specifically, the Panel received execut ive summaries from Brazil, China, the European Union, Japan, 
and Norway.  
13 United  States' first written submission, paras.  20-74. 
14 Specifically, the European Union and Japan commented on the United  States' request in their third 
party written submissions.  WT/DS510/R  
 
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  1.23.   On 20 August 2018, the Panel requested certain additional information and clarificatio ns from 
India. On 23 August 2018, India responded to such request. On the same date, the United  States  
comment ed on India's response to the United  States ' requests for  a preliminary ruling.  
1.24.   On 27 September 2018, the Panel issued its preliminary ruling to t he parties and the third 
parties, with an indication that the ruling would form an integral part of the Panel's report, subject 
to any editorial corrections.  The Panel found that two of the measures challenged by India 
(the Los Angeles Manufacturing Credit  Adder and Massachusetts Manufacturer Adder) do not fall 
within its terms of reference. The Panel also found that the two other measures challenged by India  
(the solar thermal and solar photovoltaic  rebates under the Minnesota Solar Incentive Program) are 
within its terms of reference.15 The Panel's preliminary ruling is reproduced in Annex D-1 of this 
Report.  
2  FACTUAL ASPECTS  
2.1.  This section of the Report provides a descriptive overview of the factual as pects of the 
measures at issue in this dispute.  
2.2.  India identified 11 measures in its panel request , as follows:  
1) "Incentives granted and/or maintained contingent upon the use of domestic over imported 
goods under Renewable Energy Cost Recovery Incentive Paym ent Program ( 'RECIP ') in 
the State of Washington "; 
 
2) "Incentives granted and/or maintained contingent upon the use of domestic over imported 
goods under Self -Generation Incentive Program ( 'SGIP') in the State of California "; 
 
3) "Incentives granted and/or main tained contingent upon the use of domestic over imported 
goods under Los Angeles De partment of Water and Power's (' LADWP ') Solar Incentive 
Program in the State of California "; 
 
4) "Incentives granted and/or maintained contingent upon the use of domestic over imported 
goods under Montana Tax Incentive for Ethanol Production ( 'TIEP') in the State of 
Montana "; 
 
5) "Incentives granted and/or maintained contingent upon the use of domestic over imported 
goods under Montana Tax Credit for Biodiesel Blending and Storage in the State of 
Montana "; 
 
6) "Incentives granted and/or maintained contingent upon the use of domestic over imported 
goods through refund for Taxes paid on Biodiesel by Distributor or Retailer in the State of 
Montana "; 
 
7) "Incentives granted and/or maintained contingent upon the use of domestic over imported 
goods under Connecticut Residential Solar Investment Program ( 'CRSIP ') in the State of 
Connecticut "; 
 
8) "Incentives granted and/or maintained contingent upon the use of domestic over imported 
goods  through the Renewable Energy Credits in the State of Michigan "; 
 
9) "Incentives granted and/or maintained contingent upon the use of domestic over imported 
goods through the Delaware Solar Renewable Energy Credits in the State of Delaware "; 
 
10) "Incentives gran ted and/or maintained contingent upon the use of domestic over imported 
goods under Made in Minnesota Solar Incentive Program ( 'MSIP') in the State of 
Minnesota "; and  
 
                                                
15 Preliminary ruling of the Panel, paras.  3.49 and 4.37, Annex D -1. 
 WT/DS510/R  
 
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  11) "Incentives granted and/or maintained contingent upon the use of domestic over imported 
goods under Massachusetts Clean Energy Centre's Commonwe alth Solar Hot Water 
Program, (' CSHWP ') in the State of Massachusetts ".16 
 
2.3.  India's panel request also purports to cover, in respect of all the challenged measures, 
"any amendments, modifications, repla cements, successor, and extensions thereto, and any 
implementing measure or any other related measures thereto".17 
2.4.  As noted above, we have found in our preliminary ruling that Measure  3 (Los Angeles 
Manufacturing Credit Adder ) and Measure  11 (Massachusetts Manufacturer Adder)  are outside our 
terms of reference. We do not cover those measures in the following description of the measures at 
issue.18 
2.5.  For ease of reference, as regards the measure s at issue falling within our terms of reference , 
we use the followi ng numbering and long and short titles, based on those used by India in its first 
written submission.19 
No. Full name  Short name  
1 Washington Renewable Energy Cost Incentive Program  
(RECIP) : Additional incentive  for use of components 
manufactured in Washington State Washington State additional 
incentive  
2 California Self -Generation Incentive Program  (SGIP) : 
Additional benefits for use of equipment manufactured 
in California  California Manufacturer Adder  
4 Montana tax incentive for ethanol production  Montana tax incentive  
5 Montana tax credit for biodiesel blending and storage  Montana tax credit  
6 Montana tax refund for biodiesel  Montana tax refund  
7 Connecticut Residential Solar Investment Program  
(CRSIP ): Additional incentives for use of components 
manufactured in Connecticut  Connecticut additional 
incentive  
8 Renewable Energy Standards Program in the State of 
Michigan  (RESP) : Additional benefits for use of 
equipment manufactured in Michigan  or using workforce 
from residents in Michigan  Michigan Equipment Multiplier 
/ Michigan Labour Multiplier  
9 Delaware Renewable Energy Portfolio Standards Act  
(REPSA) : Additional benefits for use of equipment 
manufactured in Delaware or using workforce fro m 
residents in Delaware  Delaware Equipment Bonus  / 
Delaware Workforce  Bonus  
10 Minnesota solar energy production incentive  SEPI 
Minnesota solar thermal rebate  Minnesota solar thermal rebate  
Minnesota solar photovoltaic rebate  Minnesota solar PV rebate  
 
2.6.  We now turn to describe the pertinent factual aspects of each of these measures in detail.  
2.1  Measure  1: Washington State a dditional incentive  
2.7.  The Washington Renewable Energy Cost Recovery Incentive Program (RECIP)20 provides 
"incentive payments[s] based on production to offset the costs associated with the purchase of 
renewable energy systems  … that generate electricity".21 Under the program, individuals, 
businesses, local  government entities (other than entities in t he light and power or gas distribution 
                                                
16 India's panel request, WT/DS510/2.  
17 India's panel request, WT/DS510/2, pp.  2-10. 
18 For a description of each of the 11 measures challenged in India's panel request, see the preliminary  
ruling of the Panel, Annex D -1. 
19 These names are used without prejudice to the legal characterization of any of the measures under 
any of the WTO covered agreements.  For ease of reference, we refer to the three programs comprising 
Measure 10 collectively  as the "Minnesota production incentives and rebates".  
20 Senate Bill 5101, Section  3(1) (Exhibit IND -1), as extended by Senate Bill 5939, Section  3(1)(a) 
(Exhibit  IND-4). 
21 Washington Administrative Code, Section  458-20-273(1) (Exhibit IND -3). 
 WT/DS510/R  
 
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  business22), and participants in community solar projects23 are eligible to receive annual payments 
for energy they produce through a customer -generated electricity renewable energy system.24 
These  payments are paid out by the light and power business serving the area where the customer -
generated electricity renewable energy system is located.25 The light and power business is then 
entitled to a credit against its public utility taxes equal to the amount paid out in incent ives, subject 
to certain conditions.26 Participation by light and power businesses in RECIP is voluntary.27 Between 
2005 and 2017, the program  was administered by the Washington D epartment of Revenue. 
In October 2017, program  management, technical review, an d tracking responsibilities of the 
Department of Revenue were transferred to the Washington State University extension energy 
program .28 
2.8.  Within the context of the RECIP , additional incentives are provided to customer -generated 
electricity produced using sol ar inverters29, solar modules30, stirling converters31, or wind blades32 
manufactured in Washington  State . 
2.9.  In order to qualify for the Washington State additional incentive, relevant manufacturers must 
make a request to the Department of Revenue. Following a  field visit to the manufacturing facilities, 
the Department of Revenue will approve or disapprove the manufacturer's certification of a product 
qualifying as "made in Washington " State.33 In determining whether "a person combining various 
items into a single package is engaged in a manufacturing activity" in Washington  State , the 
                                                
22 "Light and  Power Business" is defined as "the business of operating a plant or system of generation, 
production or distribution of electrical energy for hire or sale and/or for the wheeling of electricity for others". 
See Washington  Administrative Code, Section  458-20-273, Part I, Sub -Section  107 (Exhibit IND -3). 
23 "Community Solar Project" means any one of the three definitions contained in Section  458-20-273, 
Part I, Sub -Section  103 of the Washington  Administrative Code: "(a) A solar energy system located in 
Washin gton State that is capable of generating up to seventy five kilowatts of electricity and is owned by local 
individuals, households, nonprofit organizations, or nonutility businesses that is placed on the property owned 
in fee simple by a cooperating local governmental entity that is not in the light and power business or in the 
gas distribution business; (b) A utility owned solar energy system located in Washington State that is capable 
of generating up to seventy five kilowatts of electricity and that is v oluntarily funded by the utility's ratepayers 
where, in exchange for their financial support, the utility gives contributors a payment or credit on their utility 
bill for their share of the value of the electricity generated by the solar energy system; (c)  A solar energy 
system located in Washington State, placed on the property owned in fee simple by a cooperating local 
governmental entity that is not in the light and power business or in the gas distribution business, that is 
capable of generating up to s eventy five kilowatts of electricity, and that is owned by a company whose 
members are each eligible for a cost recovery incentive payment for the same customer generated electricity 
as defined in (105) of this part".  
24 "Customer -generated electricity" is defined as "a community solar project  or the current generated 
from a renewable energy system located in Washington State and installed on an individuals', business', or 
local government's property ". See Washington Administrative Code, Section  458-20-273, Part I, Sub -
Section  105 (Exhibit IND -3). 
25 Senate Bill 5101, Section  3(1) (Exhibit IND -1), as extended by Senate Bill 5939, Section  3(1)(a) 
(Exhibit  IND-4). 
26 Senate Bill 5101, Section  4 (Exhibit IND -1), and Washington Administrative Code, Section  458-20-
273, Part VII, Sub -Section  710 (Exhibit IND -3). 
27 Washington Administrative Code, Section  458-20-273, Part II, Sub -Sections 204 and 205 
(Exhibit  IND-3). 
28 Senate Bill 5939, Section  3(9) (Exhibit IND -4). 
29 "Solar inverter" is defined in as "a  device used to convert direct current to alternating current in a 
solar energy system". See Washington Administrative Code, Section  458-20-273, Part VI, Sub -Section  601(a) 
(Exhibit IND -3). 
30 "Solar module" is defined as "the smallest non -divisible self -contained physical structure housing 
interconnected photovoltaic cells and providing a single direct current electrical output. The lamination of the 
modules must occur in Washington state". See Washington Administrative Code, Section  458-20-273, Part VI, 
Sub-Section  601(a) (Exhibit IND -3). 
31 "Stirling converter" is defined as "a device that produces electricity by converting heat from a solar 
source utilizing a stirling engine". See Washington Administrative Code, Section  458-20-273, Part VI, Sub -
Section  601(a) (Exhibit IND -3). 
32 "Wind blade" is defined as "the portion of the rotor component of wind generator equipment that 
converts wind energy to low speed rotational energy". See Washington Administrative Code, Section  458-20-
273, Part VI, Sub -Section  601(a)  (Exhibit IND -3). 
33 Washington Administrative Code, Section  458-20-273, Part VI, Sub -section 601(b) (Exhibit IND -3). 
 WT/DS510/R  
 
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  Department of Revenue considers various factors, no  one of which is conclusive evidence of a 
manufacturing activity.34 
2.10.   The amount of the incentive payment  is calculated in two s teps. First, t he incentive payment 
rate must be  determined by multiplying the relevant base rate35 by the applicable  "economic 
development factors" .36 Second, o nce the incentive payment rate has been calculated, the incentive 
payment is determined by multipl ying the kilowatt -hours generated through the relevant renewable 
energy system  by the incentive payment rate .37 
2.11.   The "economic development factors" applied on the relevant base rate  in order to determine 
the incentive payment rate  are as follows:  
 Equipment  Factor applied on the base 
rate 
For energy 
produced 
using …  …solar modules or solar stirling converters 
manufactured in Washington State 2.4 
…solar or wind generator equipped with an 
inverter manufactured in Washington State 1.2 
…an anaerobic digester, or by other solar 
equipment or using a wind generator equipped 
with blades manufactured in Washington State 1 
…wind with any other equipment other than 
those mentioned above  0.8 
 
2.12.   The applicable economic development factors are adde d together if a renewable energy 
system has ( i) both a module and an inverter manufactured in Washington  State ; (ii) both a stirling 
converter and an inverter made in Washington  State ; or ( iii) both blades and an inverter made in 
Washington  State .38 For ele ctricity produced using solar modules or stirlings manufactured out -of-
state, no economic development factor is applied.  
2.13.   The Washington State additional incentive challenged by India is provided for in 
Section  82.16 .110 to 82.16.130  of the Revised Code of Washington (RCW)39, and Section  458-20-
273 of the Washington Administrative Code (WAC)40. Certain parts of Chapter 82.16 of the Revised 
Code of Washington were modified by S enate  Bill 5939 in July 2017, following the establishment of 
the Panel.41 In particular, following our first substantive meeting with the parties, India brought to 
our attention Section  6(12) of the S enate  Bill 5939, which  adds a new section  to Chapter 82.16 of 
the Revised Code of Washington.42 This new section, incorporated as Section  82.16.165, provides 
for "[a] made -in-Washington bonus rate … for a renewable energy system or a community solar 
project with solar modules made in Washington or with a wind turbine or tower that is made in 
                                                
34 The factors are the following: (i) The ingredients are purchased from various suppliers; (ii) The 
person combining the ingredients attach es his or her own label to the resulting product; (iii) The ingredients 
are purchased in bulk and broken down to smaller sizes; (iv) The combined product is marketed at a 
substantially different value from the selling price of the individual components; an d (v) The person combining 
the items does not sell the individual items except within the package. See Washington Administrative Code, 
Section  458-20-273, Part VI, Sub -section 601(b) (Exhibit IND -3). 
35 For community solar projects, the base rate is 30 cent s per kilowatt -hour generated by the relevant 
renewable energy system. For all others, 15 cents per kilowatt -hour generated by the relevant renewable 
energy system, up to USD 5000 per year. See Washington Administrative Code, Section  458-20-273, Part V, 
Sub-Section  501(a) (Exhibit IND -3). 
36 For details concerning the value of the applicable economic development factors, see paragraph  2.11 
below.  
37 Washington Administrative Code, Section  458-20-273, Part V, Sub -Section  501 (Exhibit IND -3). 
38 Washington Administrative Code, Section  458-20-273, Part V, Sub -Section  501(c) (Exhibit IND -3). 
39 Revised Senate Bill 5939 (Exhibit  IND-5). 
40 Washington Adminis trative Code, Section  458-20-273 (Exhibit IND -3). 
41 Senate Bill 5939 (Exhibit IND -4).  
42 India's response to Panel question No. 1. See also Senate Bill 5939 (Exhibit IND -4) and amended 
version of Chapter 82.16 of the Revised Code of Washington (Exhibit  IND-132).  
 WT/DS510/R  
 
- 18 - 
 
  Washington" .43 The extent to which th is incentive is distinct44 from the Washington State additional 
benefit identified by India in its panel request  is unclear .45 We discuss the relevance of this 
amendment  to Chapter 82.16 of the Revised Code of Washington , if any, in further detail in our 
findings.  
2.2  Measure  2: California Manufacturer Adder  
2.14.   The California Self -Generation Incentive Program (SGIP) provides for the payment of financial 
incentives for the installation of qualifying new technologies that are installed to meet all or a portion 
of the electric energy needs of a facility.46 It was approved by the California Public Utilities 
Commission and is administered by four investor -owned utilities , which issue a handbook from time 
to time establishing the policies and procedures of th e SGIP.47 Within the context of the SGIP , an 
additional incentive of 20 % is provided to any retail electric or gas distribution customer (industrial, 
agricultural, commercial , or residential) of certain providers for the installation of eligible distributed  
generation resources "from a California Supplier "48 or "manufactured in California".49 
2.15.   The 2016 SGIP Handbook was replaced by the 2017 SGIP Handbook following the 
establishment of the Panel.50 The 2017 SGIP Handbook introduced two main changes with respect 
to the measure at issue: (i) it replaced the " California Supplier "51 requirement with a "California 
Manufacturer" requirement, and (ii) it modified the specific renewable energy technology types  
eligible for the incentive .  
2.16.   The 2016 SGIP Handbook defines the  term " California Supplier " as follows:  
Any sole proprietorship, partnership, joint venture, corporation, or other business entity 
that manufactures eligible distributed generation resources in California and that meets 
either of the following criteria:  
A. The owners or policymaking officers are domiciled in California and the permanent 
principal office, or place of business from which the supplier's trade is directed or 
managed, is located in California;  
B. A business or corporation, including those owned  by, or under common control of, a 
corporation, that meets all of the following criteria continuously during the five years 
                                                
43 Amended version of Chapter 82.16 of the Revised Code of Washington, Section  82.16.165 (12) 
(Exhibit IND -132).  
44 The Washington State additional benefit identified by India in its panel request is provided for in 
Sections 82.16.110 to 82.16.130 of the Revised Code of Washington, whereas the "made -in-Washington 
bonus" is contained in a different section of that Code (i.e. Section  82.16.165), and was inserted by Senate 
Bill 5939 (Exhibit IND -5). 
45 The incentive in Section  82.16.165 of the Revised Code  of Washington "beg[a]n" on 1 July 2017, 
i.e. following India's panel request. It relates to solar modules and wind turbine or towers made in Washington 
State, as opposed to the Washington State additional incentive that relates to solar inverters, solar m odules, 
stirling converters, or wind blades manufactured in Washington State. The bonus rates set forth in 
Section  82.16.165 of the RCW range from US$0.05 in 2018 to US$0.02 in 2021, "depending on the fiscal year 
in which the system is certified". Also, pu rsuant to paragraph  3(a) of Section  82.16.165, "[n]o new certification 
may be issued under this section to an applicant who submits a request for or receives an annual incentive 
payment for a renewable energy system that was certified under RCW 82.16.120 … ". See  also amended 
version of Chapter 82.16 of the Revised Code of Washington, Section  82.16.165 (12) (Exhibit IND -132).  
46 2016 SGIP Handbook, p.  8 (Exhibit IND -16) and 2017 SGIP Handbook, p.  9 (Exhibit IND -15). 
47 Pacific Gas and Electric, Southern Califo rnia Edison, the Southern California Gas Company, and the 
Center for Sustainable Energy®. See 2016 SGIP Handbook, p.  8 (Exhibit IND -16) and 2017 SGIP Handbook, 
p. 9 (Exhibit IND -15). 
48 See Assembly Bill No. 2267, Chapter 537, 21 February 2008 (Exhibit IND -13) and that same bill 
chaptered into California's Public Utility Code in 2008. See Assembly Bill 2267 Sec. 5. (Amends) - Chaptered 
(Stats.2008 Ch.537) (Exhibit  IND-116).  
49 California Assembly Bill No. 1637 (Exhibit  IND-117).  
50 We discuss the significance of this below in our findings.  
51 The 2016 SGIP Handbook refers to " California Supplier ", which was the term used in a prior version of 
Section  379.6 of the California Public Utilities Code. See Assembly Bill No. 2267, Chapter 537, 21 February 
2008 (Exhibit  IND-13). 
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  prior to providing eligible distributed generation resources to a self -generation incentive 
program recipient:  
• Owns and operates a manufacturing facility located in California that builds or 
manufactures eligible distributed generation resources.  
• Is licensed by the state to conduct business within the state.  
• Employs California residents for work within the state.52 
2.17.   The 2017 SGIP Handbook establishes that, for distributed generation resources to qualify as 
manufactured in California, at least 50% of their capital equipment value must be manufactured by 
an approved "California Manufacturer ".53 The term "California Manufacturer" is defined as a 
manufacturer  who: (i) operates a manufacturing facility in California; (ii) is licensed to conduct 
business in California; and (iii) is registered with a primary or secondary manufacturing North 
American Industry Classification System (NAIC S) Code.54 
2.18.   Under t he 2016 SGIP Handbook , the term "eligible distributed generation resources" 
encompasses "distributed generation or Advanced Energy Storage (AES) technologies".55 
The 2017 SGIP Handbook refers, instead, to "generation equipment (Generator/Pr ime Mover and 
ancillary equipment) and energy storage equipment (storage medium -i.e. battery -, inverter, 
controller)."56  
2.19.   The California Manufacturer Adder challenged by India is provided for in Section  379.6 of the 
California Public Utilities Code  and dev eloped in the relevant SGIP Handbook .57  
2.3  Measure  4: Montana tax incentive  
2.20.   The Montana tax incentive is  a program  that provides a "tax incentive for the production of 
ethanol to be blended for ethanol -blended gasoline".58 More specifically, it  provides that "ethanol 
distributors", defined as "any person who, for the purpose of making ethanol -blended gasoline, 
engages in the business of producing ethanol for sale, use, or distribution"59, may receive "tax 
incentives"60 on ethanol61 produced "in Montana from Montana agricultural products, including 
Montana wood or wood products"62, where such ethanol63: 
a) is to be blended with gasoline for sale as an ethanol -blended gasoline64 in Montana;  
                                                
52 Assembly Bill No. 2267, Chapter 537, 21 February 2008, Section  5 (Exhibit IND -13). See also 2016 
SGIP Handbook, pp.  34-35. A list of approved " California Supplier s" for SGIP purposes is available in Self -
Generation Incentive Program, SGIP Appro ved CA Suppliers, 22 April 2016 (Exhibit IND -18). 
53 2017 SGIP Handbook, p.  25 (Exhibit IND -15). 
54 2017 SGIP Handbook, p.  25 (Exhibit IND -15). 
55 2016 SGIP Handbook, p.  34 (Exhibit IND -16). AES technologies are defined as those technologies 
able to store energy that can be discharged as useful energy at another time in order to directly supply 
electricity or offset electricity consumption. Unless specified otherwise, AES in the 2016 SGIP Handbook applies 
to all eligible storage technologies, includin g mechanical, chemical, or thermal energy storage. See 2016 SGIP 
Handbook, p.  76 (Exhibit IND -16). 
56 2017 SGIP Handbook, p.  26 (Exhibit IND -15). See also India's response to Panel question No. 109.  
57 Assembly Bill No. 2267, Chapter 537, 21 February 2008 (E xhibit IND -13), Assembly Bill 2267 Sec.  5. 
(Amends) - Chaptered (Stats.2008 Ch.537) (Exhibit IND -116), and California Assembly Bill No. 1637 
(Exhibit  IND-117).  
58 Montana Annotated Code, Section  15-70-502 (Exhibit IND -31). 
59 Montana Annotated Code, Section  15-70-503 (Exhibit IND -32). 
60 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
61 "Ethanol" is defined as "nominally anhydrous ethyl alcohol that has been denatured as specified in 
27 CFR, parts 20 and 21, and that meets the standards for ethanol  adopted pursuant to [Section] 82 -15-103 
[of the Montana Annotated Code]". See Montana Annotated Code, Section  15-70-401(9) (Exhibit IND -33). 
62 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
63 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
64 "Ethanol -blended gasoline" is defined as "gasoline blended with ethanol. The percentage of ethanol in 
the blend is identified by the letter 'E' followed by the percentage number. A blend that i s 10% denatured 
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  b) was exported65 from Montana to be blended with gasoline for sale as ethanol -based 
gasoline; or  
c) is to be used in the production of ethyl butyl ether for use in reformulated gasoline.  
2.21.   The incentive  is also payable on ethanol made using non -Montana agricultural products "when 
Montana products are not available".66 
2.22.   The incentive is available to a "facility " for six years from the date on which it begins producing 
ethanol, subject to certain administrat ive and documentary requirements.67 It is payable at the rate 
of 20 cents per gallon of distilled ethanol that is 100 % produ ced from Montana products. The amount 
of the incentive is  reduced proportionately based on the amount of agricultural or wood product s not 
produced in Montana.68 However, to receive the incentive, the ethanol must be made from at least 
the following minimum percentages of Montana products69: 
a) 20% Montana product in the first year of production;  
b) 25% Montana product in the second year of production;  
c) 35% Montana product in the third year of production;  
d) 45% Montana product in the fourth year of production;  
e) 55% Montana product in the fifth year of production; and  
f) 65% Montana product in the sixth year of production.  
2.23.   The Montana ta x incent ive is administered by the Montana Department of Transportation.70 
It is set out  in Sections 15 -70-50271, 15-70-50372, and 15 -70-522 of the Montana Annotated Code .73 
Further details concerning the administration and implementation of the incentive, including with 
respect to the application form, are set out at Sections  18.15.701 to 18.15.703 and 18.15.710 to 
18.15.712 of the Administrative Rules of Montana . 
2.4  Measure  5: Montana tax credit  
2.24.   The Montana tax credit provides for an "individual, corporation, partnership, or small business 
corporation" to receive a "credit against [certain] taxes … for the costs of investments in depreciable 
property used for storing or blending  biodiesel with petroleum diesel for sale".74 The credit may be 
claimed for such costs "incurred in the 2 tax years before the taxpayer begins blending biodiesel fuel 
                                                
ethanol and 90% gasoline would be reflected as E10. A blend that is 85% denatured ethanol and 15% gasoline 
would be reflected as E85". See Montana Annotated Code, Section  15-70-401(10) (Exhibit IND -33). 
65 "Export" is defined as "to transpor t out of Montana, by any means other than in the fuel supply tank 
of a motor vehicle, gasoline or special fuel received from a refinery or pipeline terminal within Montana". See 
Montana Annotated Code, Section  15-70-401(11) (Exhibit IND -33). 
66 Montana Anno tated Code, Section  15-70-522 (Exhibit IND -34). 
67 Montana Annotated Code, Section  15-70-522(2) (Exhibit IND -34). The term "facility" is not defined in 
the relevant sections of the Montana Annotated Code submitted to the Panel.  
68 Montana Annotated Code, Sec tion 15-70-522(2) (Exhibit IND -34). 
69 Montana Annotated Code, Section  15-70-522(3)(c) (Exhibit IND -34). 
70 Montana Annotated Code, Section  15-70-502 (Exhibit IND -31). 
71 Montana Annotated Code, Section  15-70-502 (Exhibit IND -31). 
72 Montana Annotated Code, Se ction 15-70-503 (Exhibit IND -32). 
73 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
74 Montana Annotated Code, Section  15-32-703(1) (Exhibit US -11). "Biodiesel" as used in this Section  is 
defined as meaning "a fuel produced from monoalkyl esters  of longchain fatty acids derived from vegetable 
oils, renewable lipids, animal fats, or any combination of those ingredients. The fuel must meet the 
requirements of ASTM D6751, also known as the Standard Specification for Biodiesel Fuel (B100) Blend Stock  
for Distillate Fuels, as adopted by the American society for testing and materials". See Montana Annotated 
Code, Section  15-32-703(9) (Exhibit US -11) (providing that the term "biodiesel" shall have the same meaning 
as it has in Montana Annotated Code, Sec tion 15-70-401 (Exhibit IND -33)). 
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  for sale, or in any tax year in which the taxpayer is blending biodiesel fuel for sale".75 Any credit not 
used in the year in which it is received may be carried forward for up to seven years, subject to 
certain requirements.76 
2.25.   Two categories of applicants are eligible to receive the credit: (i) special fuel distributors ; and 
(ii) owners or opera tors of a motor fuel outlet. To be eligible for the credit, applicants must own, 
lease, or otherwise have a beneficial interest in a business that blends biodiesel.77 The former 
category of applicant is eligible to receive a maximum tax credit in the amount  of 15% of the costs 
of investments in depreciable property used for storing or blending biodiesel with petroleum diesel 
for sale, up to a total of USD 52,500. The latter category is eligible to receive a maximum tax credit 
in the amount of 15% of the rele vant costs, up to a total of USD 7,500.78 
2.26.   Importantly, a special fuel distributor or owner or operator of a motor fuel outlet will only be 
eligible to receive the tax credit if, inter alia79, the investment in respect of which the credit is claimed 
is "used primarily to blend petroleum diesel with biodiesel made entirely from Montana -produced 
feedstocks".80  
2.27.   The Montana  tax credit is  administered by the Montana Department of Revenue.81 It is set 
out in section 15 -32-703 of the Montana Annotated Code .82  
2.5  Measure  6: Montana tax refund  
2.28.   The Montana tax refund establishes two tax refund program s. 
2.29.   First, it provides for "licensed distributors"83 who pay a "special fuel tax"84 on biodiesel85 to 
receive a refund equal to two cents per gallon on biodiesel  sold durin g the previous quarter if such 
                                                
75 Montana Annotated Code, Section  15-32-703(2) (Exhibit US -11). 
76 Montana Annotated Code, Section  15-32-703(6) (Exhibit US -11). 
77 Montana Annotated Code, Section  15-32-703(4)(c)(i) and (d) (Exhibit US -11). 
78 Montana Annota ted Code, Section  15-32-703(3) (Exhibit US -11). "If more than one person has an 
interest in a business with qualifying property, they may allocate all or any part of the investment cost among 
themselves and their successors or assigns [ sic]." Montana Annot ated Code, Section  15-32-703(4)(c)(ii) 
(Exhibit  US-11). However, "where the applicant is a shareholder of an electing small business corporation, the 
credit must be computed using the shareholder's pro rata share of the corporation's cost of investing in t he 
biodiesel blending facility". Montana Annotated Code, Section  15-32-703(8) (Exhibit US -11). 
79 Certain additional requirements not relevant to the present dispute are further enumerated in 
Montana Annotated Code, Section  15-32-703(4) (Exhibit US -11). 
80 Montana Annotated Code, Section  15-32-703(4)(a) (Exhibit US -11). 
81 Montana Annotated Code, Section  15-32-703(10); Montana Department of Revenue, Memorandum on 
Biodiesel Blending and Storage Tax Credit (19 April 2018) (Exhibit US -12).  
82 Montana Annotated Co de, Section  15-32-703 (Exhibit US -11). 
83 The term "distributor" is defined as:  
 
(i) a person who engages in the business in this state of producing, refining, manufacturing, or  
compounding gasoline or special fuel for sale, use, or distribution;  
(ii) an importer who imports gasoline or special fuel for sale, use, or distribution;  
(iii) a person who engages in the wholesale distribution of gasoline or special fuel in this state and 
chooses to become licensed to assume the Montana stat e gasoline tax or special fuel tax liability;  
(iv) an exporter;  
(v) a dealer licensed as of January 1, 1969, except a dealer at an established airport; or  
(vi) a person in Montana who blends ethanol with gasoline.  
 
See Montana Annotated Code, Section  15-70-401 (Exhibit IND -33). See also India's first written 
submission, para.  532. 
84 The relevant tax is specified in Montana Annotated Code, Section  15-70-403. See Montana Annotated 
Code, Section  15-70-433(1) (Exhibit IND -37). 
85 "Biodiesel" is defined as "a fue l produced from monoalkyl esters of longchain fatty acids derived from 
vegetable oils, renewable lipids, animal fats, or any combination of those ingredients. The fuel must meet the 
requirements of ASTM D6751, also known as the Standard Specification for B iodiesel Fuel (B100) Blend Stock 
for Distillate Fuels, as adopted by the American society for testing and materials". See Montana Annotated 
Code, Section  15-70-433(1) (providing that the term "biodiesel" shall have the same meaning as it has in 
Montana Ann otated Code, Section  15-70-401 (Exhibit IND -33)). 
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  biodiesel is  "produced entirely from biodiesel ingredients produced in Montana" .86 The term 
"produced in Montana" is not further defined.  
2.30.   Second, it provides for "owners and operators of retail motor fuel outlets"87 to receive a tax 
refund equal to one cent per gallon "on biodiesel on which the special fuel tax has been paid and 
that is purchased from a licensed distributor if the biodiesel is produced entirely from biodiesel 
ingredients produced in Montana".88 Again, the term "p roduced in Montana" is not further defined.  
2.31.   The Montana tax refund is set out  in section 15 -70-433 of the Montana Annotated Code89, 
and is administered by the Montana Department of Transportation.90 
2.6  Measure  7: Connecticut additional incentive  
2.32.   The Connecticut  Residential Solar Investment Program (CRSIP) is a "residential solar 
investment program" designed to "result in a minimum of three hundred megawatts of new 
residential solar photovoltaic installations".91 Specifically, it makes available, through the 
Conne cticut Green Bank92, "direct financial incentives, in the form of performance -based incentives 
or expected performance -based buydowns, for the purchase or lease of qualifying residential solar 
photovoltaic systems".93 
2.33.   Two types of financial incentives are av ailable under the CRSIP: ( i) performance -based 
incentives (PBI); and ( ii) expected performance -based buydowns (EPBB).94 
2.34.   The first type of incentive , PBI, is available to a homeowner who acquires a solar photovoltaic 
(PV) system under a third -party financing structure (i.e. by way of a lease or a power purchase 
agreement (PPA)), rather than by purchasing it. The PBI itself is not paid to the homeowner installing 
the PV sys tem, but rather to the owner of the PV system (the System Owner) that is being leased. 
It is paid over the course of 24 calendar quarters95, and is calculated based on actual production on 
a per -kilowatt -hour basis.96 System Owners are expected to build the expected total PBI amount 
into the lease or PPA rate charged to the homeowner.97 System Owners are required to use Eligible 
Contractors to install their systems. However, a System Owner may itself apply to be an Eligible 
Contractor.98 
                                                
86 Montana Annotated Code, Section  15-70-433(1) (Exhibit IND -37). 
87 This term is not defined in the relevant sections of the Montana Annotated Code submitted to the 
Panel.  
88 Montana Annotated Code, Section  15-70-433(2) (Exhibit IND -37). 
89 Montana Annotated Code, Section  15-70-433 (Exhibit IND -37). 
90 Montana Annotated Code, Section  15-70-434 (Exhibit IND -123).  
91 General Statutes of Connecticut, Section  16-245ff(b) (Exhibit IND -124).  
92 General Statutes of Conne cticut, Section  16-245ff(b) (Exhibit IND -124). The Connecticut Green Bank 
is established in General Statutes of Connecticut, Section  16-245n(d)(1)(A) as a "a body politic and corporate, 
constituting a public instrumentality and political subdivision of the  state of Connecticut established and 
created for the performance of an essential public and governmental function". General Statutes of 
Connecticut, Section  16-245n(d) (Exhibit IND -124).  
93 General Statutes of Connecticut, Section  16-245ff(c) (Exhibit IND -124). The term "qualifying 
residential solar photovoltaic system" is defined as "solar photovoltaic project that receives funding from the 
Connecticut Green Bank, is certified by the authority as a Class I renewable energy source, as defined in 
subsection (a) of section 16 -1, emits no pollutants, is less than twenty kilowatts in size, is located on the 
customer -side of the revenue meter of one -to-four family homes and serves the distribution system of an 
electric distribution company". See General Statutes of Connecticut, Section  16-245ff(a)(3) (Exhibit IND -124).  
94 General Statutes of Connecticut, Section  16-245ff(c) (Exhibit IND -124).  
95 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible Contractors 
and Third Party Photov oltaic (PV) System Owners to Participate in the Residential Solar Investment Program" 
(Exhibit IND -42), p.  3. 
96 General Statutes of Connecticut, Section  16-245ff(a)(1) (Exhibit IND -124).  
97 Connecticut Green Bank, "Request for Qualifications and Program Gui delines for Eligible Contractors 
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program", 
p. 3 (Exhibit IND -42). 
98 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible C ontractors 
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program", 
p. 3 (Exhibit IND -42). 
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  2.35.   The second type of fina ncial incentive, EPBB, is available to a homeowner who purchases a 
solar PV system from an Eligible Contractor. The contractor is required to present the EPBB as an 
upfront cost reduction to the customer. The Connecticut Green Bank then issues the EPBB pay ment 
directly to the contractor upon completion of the installation.99 Homeowners are required to work 
with Eligible Contractors to qualify for CRSIP incentives.100  
2.36.   The incentives are paid at rates determined and published by the Connecticut Green Bank101, 
subject to necessary application formalities.102 PBI and E PBB payments cannot be combined for a 
single project under the CRSIP, and no homeowner purchasing a solar PV system (and therefore 
eligible to receive EPBB) is allowed to claim or receive PBI. Likewise, no System Owner offering 
third-party financing will be allowed to claim or receive an EPBB for the same project.103 
2.37.   Within the context of the CRSIP, additional incentives of up to 5% of the ordinarily available 
incentive may be made available for the use of "major system components manufactured or 
assembled in Connecticut"104, and another additional incentive of up to 5% of the ordinarily available 
incentive may be made available "for the use of major system components manufactured or 
assembled in a distressed municipality … or a targeted investment community".105 
2.38.   The CRSIP , including the additional incentives challenged by India,  is set out  in 
section  16-245ff of the General Statutes of Connecticut.106 
2.39.   As a general matter, t he CRSIP is administered by the Connecticut Green Bank.107 However, 
Section  245ff(i) of the General Statutes of Conn ecticut indicates that the additional incentives 
available for use of major system components manufactured or assembled in Connecticut shall be 
"provide [d]" by the Public Uti lities Regulatory Authority  (PURA) .108 On the basis of legislation 
submitted by the parties, i t is unclear whether the Green Bank is involved in the disbursement of 
these payments. Although  Section  245ff(i) of the General Statutes of Connecticut do es not men tion 
the Green Bank , that provision is a subsection of Section  245ff, which establishes the CRSIP and 
does mention the Green Bank , charging it  with "structur[ing]" and "implement[ing]" the CRSIP .109 
                                                
99 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible Contractors 
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program", 
p. 3 (Exhibit IND -42). See also General Statut es of Connecticut, Section  16-245ff(1)(b) (Exhibit IND -124).  
100 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible Contractors 
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Inves tment Program", 
p. 3 (Exhibit IND -42). Details concerning Eligible Contractors are set out in pp.  4-6 of the same document.  
101 General Statutes of Connecticut, Section  16-245ff(f) (Exhibit IND -124).  
102 For details of the application process, see Connecticut Green Bank, "Request for Qualifications and 
Program Guidelines for Eligible Contractors and Third Party Photovoltaic (PV) System Owners to Participate in 
the Residential Solar Investment Program", pp.  6-14 (Exhibit IND -42). 
103 Connecticut Green Bank, "Reque st for Qualifications and Program Guidelines for Eligible Contractors 
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program", 
p. 3 (Exhibit IND -42). 
104 The term "major system components" is not defined in the relevant legal instruments.  
105 Connecticut General Statutes, Section  16-245ff(i) (Exhibit IND -124).  
106 Connecticut General Statutes, Section  16-245ff (Exhibit IND -124).  
107 Connecticut General Statutes,  Section  16-245ff(b) (Exhibit IND -124).  
108 Connecticut General Statutes, Section  16-245ff(i) (Exhibit IND -124).  
109 Connecticut General Statutes, Section  16-245ff(b) (Exhibit IND -124). We also observe that 
Section  16-245aa of the General Statutes of Connectic ut empowers the Green Bank, inter alia , to "establish a 
renewable energy and efficient energy finance program" and to give preference in this connection to "projects 
that use major system components manufactured or assembled in Connecticut".109 This correspo nds to the 
criterion for the availability of the additional incentives under the CRSIP. Despite these connections, the 
specific relationship between Sections 245aa and 245ff of the General Statutes of Connecticut remains unclear. 
We discuss these issues fu rther in our findings below as necessary.  
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  2.7  Measure  8: Michigan Equipment Multiplier / Michigan Labour Multiplier  
2.40.   The Renewable Energy Standards Program in the State of Michigan (RESPM) comprises a 
range of regulations and program s designed to "promote the development of clean energy, 
renewable energy, and energy optimization through the implementati on of a clean, renewable, and 
energy efficient standard".110 
2.41.   Inter alia , the RESPM requires "electric providers"111 to "achieve a renewable energy credit 
portfolio" at levels specified by legislation.112 A "renewable energy credit portfolio" consists of "the 
renewable energy credits achieved by a provider for a particular year".113 Subject to certain 
exceptions114, electric providers obtain renewable energy credits either by generating electricity from 
renewable energy systems for sale to retail customers, or by purc hasing or otherwise acquiring 
renewable energy credits with or without the associated renewable energy.115 
2.42.   As a general rule116, electricity providers generate one renewable energy credit117 for each 
megawatt hour of electricity generated from each of their rene wable energy systems.118 However, 
additional credits are provided to electricity providers in certain circumstances.119 Notably,  electricity 
providers receive, in addition to the standard one credit for one megawatt hour of electricity 
generate d by a renewable  energy system:  
a) 1/10 renewable energy credit for each megawatt hour of electricity generated from a 
renewable energy system constructed using equipment made in Michigan120; and  
b) 1/10 renewable energy credit for each megawatt hour of electricity from a renewa ble 
energy system constructed using a workforce composed of residents of Michigan.121 
2.43.   Additional details concerning the calculation of these additional benefits are contained in 
Michigan Case No. U -15800, Temporar y Order.122 According to that document, the fol lowing rules 
                                                
110 Michigan Public Act No. 295, Section  1(2) (Exhibit IND -43). The instrument was amended in 2017 by 
Michigan Public Act No. 342 (Exhibit IND -44), which we describe below.  
111 "Electricity provider" is defined as any of the following: "(i) Any person or entity that is regulated by 
the [Michigan Public Service Commission] for the purpose of selling electricity to retail customers in [Michigan]; 
(ii) a municipally -owned electric utility in [Michigan]; (iii) a cooperative  electric utility in [Michigan]; (iv) Except 
as used in subpart B of part 2, an alternative electric supplier licensed under section 10a of 1939 PA 3, MCL 
460.10a". See Michigan Public Act No. 295, Section  5(a) (Exhibit IND -43). 
112 Michigan Public Act No. 2 95, Section  27(3) (Exhibit IND -43). 
113 Michigan Public Act No. 295, Section  11(e) (Exhibit IND -43). The method for calculating a renewable 
energy credit portfolio is set out at Michigan Public Act No. 295, Section  27(3)(a) -(c) (Exhibit IND -43). 
114 See Michig an Public Act No. 295, Sections 27(6) and 27(7) (Exhibit IND -43). Neither party has raised 
or discussed the relevance of this provision, if any, for the claims at issue in this dispute.  
115 Michigan Public Act No. 295, Section  27(5) (Exhibit IND -43). 
116 Michigan Public Act No. 295, Section  39(1) (Exhibit IND -43). 
117 The expiry of credits, as well as rules concerning trade, sale, and transfer of credits, are contained in 
Michigan Public Act No. 295, Sections 39(3) and (4) (Exhibit IND -43). 
118 The term "renewable energy system" means "a facility, electricity generation system, or set of 
electricity generation systems that use 1 or more renewable energy resources to generate electricity", subject 
to certain exclusions. Michigan Public Act No, 295, Section  9(k) (Exhi bit IND -43). 
119 Michigan Public Act No. 295, Section  39(2) (Exhibit IND -43). 
120 This additional credit is only available for the first three years after the renewable energy system first 
produces electricity on a commercial basis. Michigan Public Act No. 295 , Section  39(2)(d) (Exhibit IND -43). 
121 This additional credit is only available for the first three years after the renewable energy system first 
produces electricity on a commercial basis. Michigan Public Act No. 295, Section  39(2)(e) (Exhibit IND -43). 
122 India has submitted a document entitled "State of Michigan, Case No. U -15900, Michigan Public 
Service Commission – Order and Notice of Hearing, 27 April 2010" (Exhibit IND -90). This appears to be a set of 
proposed final rules concerning the implementation of Michigan Public Act No. 295. It appears that these 
proposed rules were intended to replace Michigan Case No. U -15800, Temporary Order (Exhibit IND -48). It is 
unclear whether these final rules were in force at the time the Panel was established. Panel qu estion Nos. 41 
and 114 asked the parties to clarify whether these final rules were in force at the time the Panel was 
established. Responses by the parties failed to clarify the issue. At any rate, we note that the relevant sections 
of Michigan Case No. U -15800, Temporary Order are repeated in identical terms in the proposed final rules. 
Thus,  the above description covers both the Temporary Order and the proposed final rules. Neither party has 
suggested that any other orders or rules may have been in force at the relevant time. See Michigan Case 
No. U-15900, Michigan Public Service Commission – Order and Notice of Hearing, 27 April 2010, R 460.219, 
Rule 19, p.  6 (Exhibit IND -90).  
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  apply in respect of electricity generated by a renewable energy system "constructed using e quipment 
made in Michigan".  
2.44.   First, Michigan -made equipment is calculated by dividing the USD cost of all equipment and 
materials made (defined as manufa ctured or assembled) in the State of Michigan by the total USD 
cost of all equipment and materials used to construct the renewable energy system.  
2.45.   Second, t he annual number of incentive credits granted to the owner of the renewable energy 
system is determin ed by multiplying the percentage calculated  in step one  above by the result of 
1/10 multiplied by the number of MWhs produced by the renewable energy system in that year.  
100% of the incentive credits are granted to the owner of the renewable energy system  if the 
percentage calculated above equals o r exceeds 50 %.123 
2.46.   The following principles apply in respect of electricity generated by a renewable energy system 
"constructed using a workforce com posed of residents of Michigan".  
2.47.   First, Michigan labour is calculated by dividing the number of labour hours attributed to the 
construction (defined as in -field labour) of the renewable energy system performed by residents of 
the State of Michigan by the total labour hours attributed to the cons truction of the renewable energy 
system.  
2.48.   Second, t he annual number of incentive credits granted to the owner of the renewable energy 
system is determined by multiplying the percentage calculated  in step one  above by the result of 
1/10 multiplied by the num ber of MWhs produced by the renewable energy system in that year.124 
100% of the credits are granted to the owner of the renewable energy system if the percentage 
calculated in accordance with the equation above equals or exceeds the following:  
a) 60% for rene wable energy systems with a commercial operation date from 6 October 20 08 
through 31 December 2012;  
b) 65% for renewable energy systems with a commercial operation date from 1  January 2013 
through 31 December 2014; or  
c) 70% for renewable energy systems with a  commercial operation of 1 January 2015 or 
after.  
2.49.   Following the Panel's establishment on 21 March 2017, Michigan Public Act No. 342, which 
amended and replaced Michigan Public Act No. 295, entered into force on 20 April 2017.125 Michigan 
Public Act No. 342 c ontains the same rules as Michigan Public Act No. 295 concerning the availability 
of additional credits for renewable energy generated by a renewable energy system that is 
constructed using equipment made in Michigan or by a workforce composed of residents  of 
Michigan.126 
2.50.   The version of  the RESPM in force  at the time of the Panel's establishment was set out in 
Michigan Public Act No. 295 . Following the Panel's establishment, the amended version of  the RESPM 
entered into force,  and is contained in Michigan Pub lic Act No. 342.127 The program  is administered 
by the Michigan Public Services Commission.128 
                                                
123 Michigan Case No. U -15800, Temporary Order, p.  27 (Exhibit IND -48). 
124 Michig an Case No. U -15800, Temporary Order, pp.  27-28 (Exhibit IND -48). 
125 Michigan Public Act No. 342 (Exhibit IND -44). We note that Michigan Public Act No. 342 was 
"[a]pproved by the Governor" on 21 December 2016, prior to the Panel's establishment, but it did not become 
"effective" until 20 April 2017.  
126 Michigan Public Act No. 342, Sections 39(2)(d) and (e) (Exhibit IND -44). 
127 We discuss this amendment in further detail in our findings.  
128 Michigan Public Act No. 295, Section  21 (Exhibit IND -43) and Michigan Public Act No. 342, Section  22 
(Exhibit IND -44). 
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  2.8  Measure  9: Delaware Equipment Bonus / Delaware Workforce Bonus  
2.51.   The Delaware Renewable Energy Portfolio Standards Act (REPSA) provides that retail 
electricity suppliers and municipal electric companies must sell a certain percentage of electricity 
generated using "eligible energy resources" and solar photovoltaics. Com pliance with these targets 
is tracked and verified through the use of "renewable energy credits" (REC)129 and "solar renewable 
energy credits" (SREC)130. RECs and SRECs are tradable instruments on an electronic market 
system.131 
2.52.   Within the context of REPSA, an a dditional 10% credit is provided to retail electricity 
suppliers132 toward s meeting the renewable energy portfolio standards133 for solar or wind energy 
installations sited in Delaware provided that : (i) a minimum of 50% of the cost of renewable energy 
equipme nt, inclusive of mounting components, are manufactured in Delaware  (Delaware Equipment 
Bonus) ; or (ii) the facility is constructed or installed with a minimum of 75% in -state workforce  
(Delaware Workforce Bonus) .134 This means that workforce must consist of at least 75% Delaware 
residents or the installing company must employ in total a minimum of 75% workers who are 
Delaware residents.  
2.53.   The Delaware Public Service Commission verifies that the required percentages of 
manufacture and workforce in Delaware are met.135 According to India, the Commission  carries out 
the verification of the cost of the equipment based  on the  copy of the supplier 's invoice which is 
required together with the  "Application for Certification" . The invoice must show Delaware 
manufactured equipment with the facility identified.  If the supplier 's invoice shows only a coded 
Purchase Order (PO) number, a copy of the company 's matching PO that includes the address where 
the materials were used/installed must also be suppli ed. If a master invoice is submitted,  a record 
of the draws against the purchased quantity, on the master invoice, must show the address of each 
use and the quantity of material used.136 
2.54.   The Delaware Equipment and Workforce Bonuses , which can be added togeth er137, are 
provided for in Section  356(d) and (e) of the REPSA138, and developed in the Rules and Procedures 
to Implement the Renewable Energy Portfolio Standard by the Delaware Public Service 
Commission .139 The REPSA is administered by the Delaware Public Services Commission.  
                                                
129 One REC is "equal to 1 megawatt -hour of retail electricity sales … derived from eligible energy 
resources". See Delaware Code, Title 2 6, Chapter 1, Subchapter III -A, Section  352(18) (Exhibit IND -54). 
130 One SREC is "equal to 1 megawatt -hour of retail electricity sales … derived from solar photovoltaic 
energy resources". See Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  352(25) 
(Exhibit  IND-54). 
131 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  352(18) and (25) (Exhibit IND -54). 
132 "Retail electricity supplier" is defined as "a person or entity that sells electrical energy to end use 
customers in Delaware, inclu ding but not limited to nonregulated power producers, electric utility distribution 
companies supplying standard offer, default service, or any successor service to end use customers". The term 
does not cover a municipal electric company for the purposes o f the measure at issue. See Delaware Code, 
Title 26, Chapter 1, Subchapter III -A, Section  352(22) (Exhibit IND -54). 
133 "Renewable energy portfolio standard" and "RPS" means "the percentage of electricity sales at retail 
in the state that is to be derived fr om eligible energy resources". See Delaware Code, Title 26, Chapter 1, 
Subchapter III -A, Section  352(19) (Exhibit IND -54). 
134 Rules and Procedures to Implement the Renewable Energy Portfolio Standard, Rule 3.2.16 
(Exhibit  IND-55). 
135 Recommendations of the R enewable Energy Taskforce, Section  2.3 (Exhibit IND -58). 
136 India's response to Panel question No. 115 (referring to the Application for Certification in Exhibit 
IND-127). See also India's response to Panel question No. 47, and first written submission, fns  656 and 688.  
137 Recommendations of the Renewable Energy Taskforce, Section  2.3 (Exhibit IND -58). 
138 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  356(d) and (e) (Exhibit IND -54). 
139 Rules and Procedures to Implement the Renewable Energy Portf olio Standard (Exhibit IND -55). 
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  2.9  Measure  10: Minnesota production incentives and rebates  
2.55.   India refers to three program s under the general umbrella  term "Minnesota  Solar Incentive 
Program"140: 
a) performance -based financial incentives offered  to owners of grid -connected sol ar 
photovoltaic (PV) modules if the solar PV modules qualify as "Made in Minnesota"  (SEPI) ; 
b) rebates offered for the installation of "Made in Minnesota" solar thermal systems  
(Minnesota solar thermal rebate) ; and 
c) rebates offered to owners of a qualified pro perty for installing solar PV mod ules 
manufactured in Minnesota  (Minnesota solar PV rebate) . 
2.56.   The Minnesota legislature repealed the first two program s, i.e. the SEPI, and the rebate 
program  on the installation of solar thermal systems, on 22 May 2017, afte r the Panel was 
established.141 Payments of incentives pursuant to the SEPI are permitted until 31  October 2028.142 
The parties disagree on whether r ebate payments  are ongoing under the Minnesota143 solar thermal 
rebate.144 
2.9.1   Minnesota solar energy production incentive  (SEPI)  
2.57.   The Minnesota solar energy production incentive ( SEPI) is open to owners of grid -connected 
solar photovoltaic (PV) modules145 of a total nameplate capacity of less than 40 kilowatts who 
submitted to the Commissioner of Commerce an  application to receive the incentive that has been 
approved by the Commissioner  and received a "Made in Minnesota" certificate  for the module under 
section 216C.413 of the 2016 Minnesota Statutes . The solar PV modules certified as "Made in 
Minnesota" must have been installed on either residential146 or commercial147 premises  and must 
generate electricity .148 
                                                
140 India's first written submission, para.  939. 
141 Senate Session Laws, Chapter 94, S.F. 1456 (Exhibit IND -100). We discuss the relevance of this 
repeal in our findings below.  
142 United  States' response to Panel question No. 11 7, and India's comments on the United  States' 
response to Panel question No. 117.  
143 India's response to Panel question No. 102 and comments on the United  States' response to Panel 
question No. 117; United  States' response to Panel question No. 117. We disc uss the relevance of this 
information in our findings below.  
144 India's response to Panel question No. 102 and comments on the United  States' response to Panel 
question No. 117; and United  States' response to Panel question No. 117. We discuss the relevance  of this 
information in our findings below.  
145 "Solar photovoltaic module" is defined as the smallest, nondivisible, self -contained physical structure 
housing interconnected photovoltaic cells and providing a single direct current of electrical output. See 2016 
Minnesota Statutes, Chapter 216C, Sectio n 216C.411 referring to 2016 Minnesota Statutes, 
Section  116C.7791, subdivision 1, paragraph  (e) (Exhibit IND -66). 
146 "Residential property" is defined as "residential real estate that is occupied and used as a homestead 
by its owner or by a renter and incl udes 'multifamily housing development' as defined in section 462C.02, 
subdivision 5, except that residential property on which solar photovoltaic modules (i) whose capacity exceeds 
10 kilowatts is installed; or (ii) connected to a utility's distribution sy stem and whose electricity is purchased by 
several residents, each of whom own a share of the electricity generated, shall be deemed commercial 
property". See 2016 Minnesota Statutes, Chapter 216C, Section  216C.415, subdivision  5 (Exhibit IND -66). 
147 "Comme rcial property" is defined as "real property on which is located a business, government, or 
nonprofit establishment". See 2016 Minnesota Statutes, Chapter 216C, Section  216C.415, subdivision 5 
(Exhibit IND -66). 
148 2016 Minnesota Statutes, Chapter 216C, Sect ion 216C.415, subdivision 1 (Exhibit IND -66). 
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  2.58.   To receive the "Made in Minnesota" certificate by the Commissioner of Commerce, solar PV 
modules must:  
a) be manufactured at a manufacturing facility located in Minnesota that is registered and 
authorized to manufacture and apply the UL 1703 certification mark to solar PV modules 
by Underwriters Laboratory (UL), CSA International, Intertek, or an equivalent UL -
approved in dependent certification agency;  
b) be manufactured in Minnesota by manufacturing processes that must include tabbing, 
stringing, and lamination; or by interconnecting low -voltage direct current photovoltaic 
elements that produce the final useful ph otovoltaic output of the modules; and  
c) bear UL 1703 certification marks from UL, CSA International, Intertek, or an equivalent 
UL-approved independent certification agency, which must be physically applied to the 
modules at a manufacturing facility describe d in subparagraph  a) above .149 
2.59.   Incentive payments under this program  are made only for electricity generated from new 
solar PV module installations commissioned between 1 January 2014 and 31  December  2023. An 
owner of solar PV modules may , in principle,  receive payments under this program  for a particular 
module for a period of ten years , provided that sufficient funds are available.150 
2.60.   The SEPI is provided for in Sections 216C.411 – 216C.415 of the 2016 Minnesota Statutes.151 
2.9.2   Minnesota solar thermal rebate  
2.61.   The Minnesota solar thermal rebate  provides rebates upon the installation of solar thermal 
systems152 "Made in Minnesota" in residential or comme rcial premises.153 
2.62.   For solar thermal systems to qualify as "Made in Minnesota", their components must be 
manufactured in Minnesota and the solar thermal system must be certified by the Solar Rating and 
Certification Corporation.154 
2.63.   The rebates, which are grant ed by the Commissioner of Commerce  following an application , 
vary depending on whether applications relate to a single family residential dwelling installation, a 
multiple family residential dwelling installation, or a commercial installation.155 Section  216C.416 
provides that, "[t]o the extent there are sufficient applications, the commissioner shall annually 
spend for rebates under this [program]  from 2014 to 2023, for a total of ten years, approximately 
$250,000 per year. "156 
2.64.   The Minnesota solar thermal  rebate is provided for in Section  216C.416 of the 2016 Minnesota 
Statutes.157 
                                                
149 A solar photovoltaic module that is manufactured by attaching microinverters, direct current 
optimizers, or other power electronics to a laminate or solar photovoltaic module that has received UL 1703 
certifi cation marks outside Minnesota from UL, CSA International, Intertek, or an equivalent UL -approved 
independent certification agency is not "Made in Minnesota". See 2016 Minnesota Statutes, 
Section  216C.411(a) (Exhibit IND -66).  
150 2016 Minnesota Statutes, Ch apter 216C, Section  216C.415, subdivision 4 (Exhibit IND -66). 
151 2016 Minnesota Statutes, Chapter 216C, Sections 216C.411 – 216C.415 (Exhibit IND -66). 
152 "Solar thermal system" is defined as "a flat plate or evacuated tube that meets the requirements of 
section 216C.25 with a fixed orientation that collects the sun's radiant energy and transfers it to a storage 
medium for distribution as energy to heat or cool air or water". See 2016 Minnesota Statutes, Chapter 216C, 
Section  216C.416, Subdivision 1 (Exhibit I ND-110).  
153 2016 Minnesota Statutes, Chapter 216C, Section  216C.416, Subdivision 1 (Exhibit IND -110).  
154 2016 Minnesota Statutes, Chapter 216C, Section  216C.416, Subdivision 1 (Exhibit IND -110).  
155 2016 Minnesota Statutes, Chapter 216C, Section  216C.416, Subd ivision 3 (Exhibit IND -110).  
156 2016 Minnesota Statutes, Chapter 216C, Section  216C.416, Subdivision 2(c) (Exhibit IND -110).  
157 2016 Minnesota Statutes, Chapter 216C, Section  216C.416 (Exhibit IND -110).  
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  2.9.3   Minnesota solar photovoltaic (PV) rebate  
2.65.   The Minnesota solar photovoltaic  (PV) rebate provides rebates to owners of qualified 
properties158 who install159 solar PV modules160 manufactured in Minnesota after 
31 December  2009.161 
2.66.   For solar PV modules to be considered as manufactured in Minnesota, the material production 
of solar PV modules, including the tabbing, stringing, and lamination processes must take place in 
Minnesota; or the production of interconnections of low -voltage photoactive elements that produce 
the final useful PV output must be carried out by a manufacturer operating in Minnesota on 
18 May 2010.162 
2.67.   To be eligible for this rebate : 
a) A solar PV module must (i) be manufactured in Minnesota; (ii) be installed on a qualified 
property as part of a system whose generating capacity does not exceed 40 kilowatts; 
(iii) be certified by Underwriters Laboratory, must have received the ETL listed mark from 
Intertek , or must have an equivalent certification from an independent testing agency; 
and (iv) be installed, or reviewed and approved, by a person certified as a solar 
photovoltaic installer by the North American Board of Certified Energy Practitioners . 
In additi on, the solar PV module (i) may or may not be connected to a utility grid; and 
(ii) may not be used to sell, transmit, or distribute the electrical energy at retail, nor to 
provide end -use electricity to an offsite facility of the electrical energy generat or (on -site 
generation being allowed to the extent provided for in section 216B.1611)163; and  
b) An applicant must have applied for and received a rebate or other form of financial 
assistance available exclusively to owners of properties on which solar PV modul es are 
installed, and provided by either the State of Minnesota or the utility company serving the 
applicant's property (unless the applicant's failure to receive the rebate or financial 
assistance was due to lack of funds).164 However, the Minnesota solar e nergy production 
incentive (SEPI) does not count in this respect, as a person receiving the SEPI is not 
entitled to receive a Minnesota solar PV rebate for the same solar PV modules.165 
2.68.   The amount of a rebate under this program  is the difference between the sum of all rebates 
described in subparagraph b) above awarded to the applicant and $5 per watt of installed generating 
capacity.166 The amount of all rebates or other forms of financial assistance awarded to an applicant 
by a u tility or the State, including any rebate paid under this program  (net of applicable federal 
income taxes applied at the highest applicable income tax rates) is capped at 60 % of the total 
installed cost of the solar PV modules.167 
2.69.   The Minnesota solar PV  rebate is provided for in Section  116C.7791 of the 2016 Minnesota 
Statutes.168 
                                                
158 "Qualified property" is defined as "a residence, multifamily residence, business, or publicly owned 
building located in the assigned service area of the utility subject to sectio n 116C.779". See 2016 Minnesota 
Statutes, Section  116C.7791, Subdivision 1(d) (Exhibit IND -66). 
159 "Installation" is defined as "an array of solar photovoltaic modules attached to a building that will use 
the electricity generated by the solar photovoltaic modules or placed on a facility or property proximate to that 
building". See 2016 Minnesota Statutes, Section  216C.7791, Subdivision 1(a) (Exhibit IND -66). 
160 "Solar photovoltaic module" is defined as "the smallest, nondivisible, self -contained physical 
structure housing interconnected photovoltaic cells and providing a single direct current of electrical output." 
See 2016 Minnesota Statutes, Section  116C.7791, Subdivision 1(e) (Exhibit IND -66). 
161 2016 Minnesota Statutes, Section  216C.7791, Subdivision 2 (Ex hibit IND -66). 
162 2016 Minnesota Statutes, Section  216C.7791, Subdivision 1(b) (Exhibit IND -66). 
163 2016 Minnesota Statutes, Section  216C.7791, Subdivision 3(a) (Exhibit IND -66). 
164 2016 Minnesota Statutes, Section  216C.7791, Subdivision 3(b) (Exhibit IND -66). 
165 2016 Minnesota Statutes, Section  216C.415, Subdivision 6 (Exhibit IND -66). 
166 2016 Minnesota Statutes, Section  216C.415, Subdivision 4(a) (Exhibit IND -66). 
167 2016 Minnesota Statutes, Section  216C.415, Subdivision 4(b) (Exhibit IND -66). 
168 2016 Minnesota Statutes, Section  216C.7791 (Exhibit IND -66). 
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  3  PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  
3.1.   India requests that the Panel find that the measures at issue are  inconsistent with the 
United  States ' obligations under the GATT  1994, the TRIM s Agreement , and the SCM  Agreement . 
India further requests, pursuant to Article  19.1 of the DSU, that the Panel recommend that the 
United  States  bring its measures into conformity with its WTO obligations.169 
3.2.  The United  States  requests the Panel to find that India has failed to meet its burden to show 
that the measures at issue are inconsistent with the provisions of the GATT  1994, the 
TRIMs  Agreement , and the SCM  Agreement  cited by India.170 
4  ARGUMENTS OF THE PAR TIES  
4.1.  The argument s of the parties are reflected in their executive summaries, submitted  in 
accordance with paragraph 23 of the Panel's Working Procedures (see An nexes B-1 and B-2). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Brazil,  China,  the European  Union , Japan , and Norway  are reflected in their 
executive summaries, provided in accordance with paragraph 26 of the Working Procedures adopted 
by the Panel (see Annexes C-1, C-2, C-3, C-4, and C-5). Indonesia, the Republic of Korea, the 
Russian Federation, the Kingdom of Saudi Arabia, Singapore, Chinese Taipei, and Turkey  did not 
submit written or oral arguments to the Pane l. 
6  INTERIM REVIEW  
6.1.  The Panel issued its Interim  Report to the parties on 25 April 2019. On 9 May 2019, both parties 
submitted written requests  for the Panel to review precise aspects of the Interim  Report, and neither 
party requested an interim review meeting. On 23 May 2019, the parties submitted written 
comments on each other's written requests for review. The parties' requests, made at the in terim 
review stage, as well as the Panel's discussion and disposition of these requests are set out in 
Annex  E-1. 
7  FINDINGS  
7.1  Measures amended or repealed following the establishment of the Panel  
7.1.  Before proceeding to the substance of India's claims, we address a threshold issue arising from 
the fact that several instruments underlying the measures challenged by India in this dispute were 
amended or repealed following the establishment of this Panel  on 21 March 2017.  
7.2.  Specifically, Measures 1 (Washington State additional i ncentive), 2 (California Manufacturer 
Adder) and 8 (Michigan Equipment Multiplier and Michigan Labour Multiplier) have been amended .171 
Additionally, two of the three program s identif ied by India under Measure  10, namely the Minnesota 
solar energy production incentive (SEPI) and the Minnesota solar thermal rebate, were repealed 
following the Panel's establishment.172  
7.3.  In light of these changes, India requested that we make findings and recommendations on the 
amended versions of Measures 1 and 8173; on both the original and amended version of 
Measure  2174; and on the two repealed program s under Measure  10.175 While the United  States  does 
not object to the Panel considering either Measure  8 as amended or the two repealed program s 
                                                
169 India's first written submission, para.  1178 and second written submission, para.  99. 
170 United  States' first written submission, para.  257 and second written submission, para.  47. 
171 See paras.  2.13, 2.15, and 2.49 above.  
172 See para. 2.56 above.  
173 India's response to Panel question No. 102, paras.  4 and 7.  
174 India's response to Panel question No. 102, para.  5. 
175 India's response to Panel question No. 102, para.  8. 
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  under Measure  10176, it has submitted that the amended versions of Measures 1 and 2 do not fall 
within the Panel's terms of reference.  
7.4.  These circumstances raise the following questions: are the amended measure s 
(i.e. Measures  1, 2, and 8), on the one hand, and the repealed program s (under Measure  10), on 
the other hand, within our terms of reference177; and can or should we make findings and 
recommendations on these amended measures and repealed program s?178 Additi onally, with respect 
to the amended measures, should we also make findings and recommendations on these measures 
as they existed at the time the Panel was established? We will examine these questions separately 
in respect of the amended measures (Measures 1, 2, and 8) and the two repealed program s under 
Measure  10. 
7.1.1   Measures amended following the establishment  of the Panel  
7.5.  To better understand India's position in respect of Measures 1, 2, and 8, we asked India to 
explain the legal basis for its request that the Panel examine the WTO -consistency of these measures 
as amended following panel establishment. In  response, India explained that past panels have made 
findings on measures amended following panel establishment where a panel's terms of reference 
were bro ad enough to encompass the amendments, the amendments did not change the essence of 
the challenged measure, and  addressing the amended measure as amended was necessary to 
resolve the dispute.179 In support of this proposition, India relies on the panel repor t in EC – IT 
Products .180 According to India, applying these criteria in the present dispute leads to the conclusion 
that the amendments to Measures 1, 2, and 8 are within the Panel's terms of reference. India also 
submits that the United  States  has not cont ested the Panel's ability to make findings on the 
measures as amended.181 
7.6.  In its comments on India's responses to our questions, the United  States  indicated its 
disagreement with India's position that we can or should examine the WTO -consistency of measures 
amended after the Panel 's establishment. According to the United  States , "the measures within a 
panel's terms of reference are defined by the complainant's panel request, and the relevant time for 
defining the measures within the panel's terms of reference is the time of the DSB's establishment 
of the panel".182 In the United  States ' view, "nothing in the text of Articles  6.2 or 7.1 of the DSU 
supports the view that measures enacted after the date of panel establishment (including 
amendments) are wit hin a panel's terms of reference", "[n]or has India identified any other text in 
                                                
176 United  States' comments on India's response to Panel question No. 102, para.  8. We note that "the 
United  States continues to maintain [following the preliminary ruling of the Panel] that the Rebate for Solar 
Thermal Systems is not within the Panel's terms of reference because it was not identified in India s request for 
consultations". U nited States' comments on India's response to Panel question No. 102, fn  9. See also the 
United  States' first written submission, paras.  66-74. We recall, however, the finding in our preliminary ruling 
that the Minnesota solar thermal rebate is within our terms of reference. See preliminary ruling of the Panel, 
para. 4.37, Annex D -1. 
177 We note that the issues raised in this section of our Report are distinct from those discussed in our 
preliminary ruling. The latter concerned,  inter alia , whether we had jur isdiction over measures that had expired 
prior to the Panel's establishment. The question here concerns measures that were amended or repealed 
following  the establishment of the Panel. As we explained in our Preliminary Ruling, amendment or repeal of a 
measure prior to the establishment of a panel may have implications for that panel's terms of reference that 
are quite different from the implications of an amendment or repeal subsequent  to panel establishment. See 
preliminary ruling of the Panel, paras.  3.28-3.29, Annex D -1. 
178 We note that these fundamental issues, which ultimately go to our jurisdiction, were not addressed 
directly in the parties' first or second written submissions. Rather, we addressed questions to the parties on 
this issue, mindful of th e Appellate Body's guidance that "panels cannot simply ignore issues which go to the 
root of their jurisdiction [but must] deal with such issues – if necessary, on their own motion – in order to 
satisfy themselves that they have authority to proceed" (Appe llate Body Report, Mexico – Corn Syrup 
(Article  21.5 – US), para.  36. See also Appellate Body Report, US – 1916 Act , para.  54; Panel Reports, EC – IT 
Products , para.  7.196 and US – Clove Cigarettes , para.  7.134). See Panel questions Nos.  40, 102 -104, 106, 
113, and 116 -117.  
179 India's response to Panel question No. 102, para.  1. 
180 India's response to Panel question No. 102, para.  1 (referring to Panel Reports, EC – IT Products , 
para. 7.139).  
181 India's responses to Panel question No. 102, para.  2, and No. 103 , para.  9. 
182 United  States' comments on India's response to Panel question No. 102, para.  2. See also 
United  States' response to Panel question No. 103 and comments on India's response to Panel question 
No. 102. 
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  the DSU that would otherwise support such a view".183 The United  States  adds that India's reference 
to what is necessary to secure a positive solution to the dispute is misplace d, as nothing in Article  6.2 
or 7.1 of the DSU "suggests that a panel may review a measure that otherwise falls outside of its 
terms of reference … because – in the view of the complaining Member – doing so is necessary to 
secure a positive solution to the  dispute".184 Additionally,  the United  States  argues that the "certain 
report s" relied upon by India are "not persuasive", because they did "not start with or even consider 
the relevant text of the DSU".185 On the basis of these considerations, the  United  States submits 
that we should only review the WTO -consistency of measures that existed at the time of panel 
establishment.186  
7.1.1.1   Overview of applicable principles  
7.7.  Neither party has engaged in detail with past cases that have dealt with the issue of a panel's 
jurisdiction over measures amended after panel establishment. India's argumentation on this specific 
issue cites one panel report187, whereas the United  States ' mentions – generally and without any 
specific references – "certain reports" that , in the United  State s' view , are "not persuasive".188  
7.8.  There are, however, several relevant past cases that, in our view, provide guidance on the 
issue before us. Indeed, although "[a]s a general rule, the measures included in a panel's terms of 
reference must be measures in ex istence at the time of the establishment of the panel  "189, the 
Appellate  Body has indicated that " Article  6.2 does not set out an express temporal condition or 
limitation on the measures that can be identified in a panel request"190: "measures enacted 
subsequ ent to the establishment of the panel may, in certain limited circumstances, fall within a 
panel's terms of reference".191  
7.9.  In this connection, we recall that  in Chile – Price Band System , the Appellate  Body stated that: 
If the terms of reference in a dispute are broad enough to include amendments to a 
measure —as they are in this case —and if it is necessary to consider an amendment in 
order to secure a positive solution to the dispute —as it is here —then it is appropriate t o 
consider the measure as amended  in coming to a decision in a dispute.192 
7.10.   Additionally, in EC – Selected Customs Matters , the Appellate  Body explained that "a panel 
has the authority to examine a legal instrument enacted after the establishment of the panel  that 
amends a measure identified in the panel request, provided that the amendment does not change 
the essence of the identified measure".193 
7.11.   These basic principles – that a panel has jurisdiction to examine amendments made to 
measures in existence at the t ime of panel establishment if ( i) the terms of reference are broad 
enough to include such amendments; ( ii) the amendments do not change the essence of the 
measures identified in the panel request; and ( iii) such examination is necessary to secure a positiv e 
                                                
183 United  States' comments on India's respons e to Panel question No. 102, para.  5. 
184 United  States' comments on India's response to Panel question No. 102, para.  6. 
185 United  States' comments on India's response to Panel question No. 102, para.  5. 
186 United  States' comments on India's response to Panel question No. 103.  
187 India's response to Panel question No. 102, para.  1(ii) (referring to Panel Reports, EC – IT Product s, 
para. 7.139).  
188 United  States' comments on India's response to Panel question No. 102, para.  5. 
189 Appellate Body Report, EC – Chicken Cuts , para.  156. 
190 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para.  121. 
191 Appellate Body Repo rt, EC – Chicken Cuts , para.  156. See also Appellate Body Report, US – Zeroing 
(Japan) (Article 21.5 – Japan) , para.  121. 
192 Appellate Body Report, Chile – Price Band System , para.  144 (emphasis original). See also Appellate 
Body Report, EC – Chicken Cuts , para. 156. 
193 Appellate Body Report, EC – Selected Customs Matters , para.  184 (footnote omitted, referring to 
Appellate Body Report, Chile – Price Band System , para. 139).  
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  solution to the dispute – have also been applied by several panels, including in EC – IT Products194 
and China – Raw Materials .195 
7.12.   Therefore , we are  of the view that India's statement of the applicable principles concerning a 
panel's jurisdiction over measur es amended after panel establishment is supported by several panel 
and Appellate  Body reports.  
7.13.   As noted above196, the United  States  argues that India has relied on "certain reports " which, 
in the United  States ' view, are not persuasive because they did not "start with or even consider the 
relevant text of the DSU".197 However, as also noted above, the notion that a panel may, in certain 
circumstances, examine the WTO -consistency of a n amended  measure subsequent to panel 
establishment is supported not only by t he EC – IT Products  panel report cited by India, but by 
several other reports, including Appellate  Body reports, which either explicitly or implicitly base their 
findings on DSU provisions, including  Article s 3 and  6.2. 
7.14.   Indeed, when assessing whether amend ments to measures identified in the panel request fall 
within a panel's terms of reference, both panels and the Appellate  Body have found guidance in the 
requirement in Article  6.2 of the DSU that the panel request identify the "specific measures at 
issue" .198 Further, in some instances, both panels and the Appellate  Body have reviewed this issue 
in light of the principles and objectives in Article  3 of the DSU.199  
7.15.   We therefore disagree with the United  States ' argument that past cases are not persuasive 
because they did not "start with or even consider the relevant text of the DSU".200 Accordingly, and 
since the United  States  has not further clarified  why it considers that certain reports are "not 
persuasive", we see no reason to depart from the relevant guidance summarized above.  
7.16.   Therefore , in considering whether we can and should assess the WTO -consistency of Measures 
1, 2, and 8 as amended, we will have regard to whether ( i) the terms of India's panel request are 
broad enough to cover the measu res as amended; ( ii) the amendments in question change the 
essence of the measures as identified in India's panel request; and ( iii) whether assessing the 
measures as amended is necessary to secure a positive solution to the dispute.  
7.17.   As an additional and closely related issue, we note that, even if an amendment falls within a 
panel's terms of reference, the panel retains jurisdiction over the measure as it existed at the time 
of panel establishment.201 In principle, therefore, a panel with jurisdiction over amended measures 
could address the measure as they existed at the time of panel establishment as well. The question 
of which version or versions of an amended measure a panel addresses, and the precise 
                                                
194 Panel Reports, EC – IT Products , para.  7.139.  
195 Panel Reports, China – Raw Materials , para.  7.15. See also Panel Report, Indonesia – Autos , fn 642, 
listing numerous GATT panel reports deciding to consider measures as amended following panel establishment.  
196 See para.  7.6 above.  
197 United  States' comments on India's response to Panel question No. 102, para.  5. According to the 
United  States, "nothing in the text of Articles  6.2 or 7.1 of the DSU supports the view that measures enacted 
after the  date of panel establishment (including amendments) are within a panel's terms of reference". See 
United  States' comments on India's response to Panel question No. 102, para.  5. 
198 See, for example, Appellate Body Reports, Chile – Price Band System , paras.  126-144; EC – Chicken 
Cuts, para.  156; and US – Zeroing (Japan) (Article 21.5 – Japan) , para.  121; and Panel Reports, US – Large 
Civil Aircraft (2nd complaint) (Article 21.5 – EU), para.  7.534; and EC – IT Products , paras.  7.135 -7.139.  
199 The Appellate Bod y in Chile – Price Band System  and the panel in US – Large Civil Aircraft 
(2nd complaint) (Article 21.5 – EU) referred to Articles  3.4 and 3.7 of the DSU; the panel in Colombia – Ports of 
Entry  referred to Article 3.7 of the DSU; the panel in EC – Fastener s (China) referred to Article 3.3 of the DSU; 
and the panel in Russia – Pigs (EU)  referred to Article 3.3 and 3.7 of the DSU. See Appellate Body Reports, 
Chile – Price Band System , paras.  140-141; EC – Chicken Cuts , para.  161, US – Zeroing (Japan) (Article  21.5 – 
Japan) , para.  122; and panel Reports, Colombia – Ports of Entry , para.  7.52, EC – Fasteners (China) , 
para. 7.34, US – Large Civil Aircraft (2nd complaint) (Article 21.5 – EU), para.  7.542, and  Russia – Pigs (EU) , 
para. 7.151.  
200 United  States' comme nts on India's response to Panel question No. 102, para.  5. 
201 Appellate Body Reports, EC – Selected Customs Matters , para.  187. 
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  recommendations that it makes, will depend first and f oremost  on the complainant's specific 
request202 and on what is necessary to secure a positive solution to the dispute.203 
7.1.1.2   Measure  1: Washington  State additional incentive  
7.18.   Senate  Bill 5939 of July 2017204 amended certain parts of Chapter 82.16 of the Revised  Code 
of Washington (RCW) following the establishment of the Panel.  
7.19.   India argues that these amendments to Chapter 82.16 of the RCW "do not impact India's 
claims"205 and fall "within the terms of reference of the Panel"206 for two reasons. First, in India's 
view, the amendments do not "'change the essence' of the original measure"; and second, according 
to India, India's panel request is "broad enough to include any sub sequent amendments, 
replacements, or extensions thereto".207 India requests the Panel to make both findings and 
recommendations on the measure  as amended in 2017 , including on the 'made in Washington' bonus 
introduced by the amendment and codified in RCW 82. 16.165208, since, in its view, such findings 
and recommendations are necessary to achieve a positive solution to the dispute.209 India does not 
specifically request that we make findings and recommendations on the original version of 
Measure  1. 
7.20.   The United  States  responds that Measure  1 as amended is not within the Panel's terms of 
reference because it did not exist at the time of t he Panel's establishment. In the United  States ' 
view, it follows that "there is no basis for the Panel to issue legal findings or recommendations with 
respect to" the amended measure.210 In respect of the factual aspects of the amendment, the 
United  States  observes that S enate  Bill 5939 "reduced the level of incentives previously available 
under RECIP".211 
7.21.   In order to determine  whether we  should  assess the WTO -consistency of the Washington 
State additional incentive as amended by S enate  Bill 5939, we will exami ne (i)  whether India's panel 
request is broad enough to encompass the relevant amendment; (ii)  whether there has been any 
change in the essence of the measure at issue as a result of the amendment; and (iii) whether our 
findings and , if relevant,  recommend ations are necessary to secure a positive resolution to the 
dispute. We  will do so by looking at Sections  82.16.110  - 82.16.130 of the RCW as amended by 
Senate  Bill 5939, followed by Section  82.16.165 of the RCW which was introduced by S enate  
Bill 5939.  
7.22.   We consider that India's panel request is broad enough to encompass the amendments to 
Sections 82.16.110  - 82.16.130 of the RCW introduced by S enate  Bill 5939. In fact, although India's 
panel request does not reference S enate  Bill 5939, which was adopted onl y at a later stage, it 
explicitly identifies as part of Measure  1 "any amendments, modifications, replacements, successor, 
and extensions thereto, and any implementing measure or any other related measures thereto".212  
7.23.   With respect to the essence of the mea sure at issue, we note that although the United  States  
submits that S enate  Bill 5939 "reduced the level of incentives previously available under RECIP"213, 
the key sub section  of the original measure providing for the economic development factors under 
the ad ditional incentive remains unchanged.214 The changes to Section  82.16.120 introduced by 
Senate  Bill 5939 relate to other subsections and mostly concern administrative issues, such as the 
transfer of certain responsibilities from the Washington Department of Revenue to the Washington 
                                                
202 Panel Report, Russia – Tariff Treatment , para.  7.84. 
203 Appellate Body Report, Chile – Price Band System , para.  144. 
204 Senate Bill 5939 (Exhibit IND -4). 
205 India's response to Panel question No. 1.  
206 India's response to Panel question No. 102, para.  3. 
207 India's response to Panel question No. 102, para.  3. 
208 India's responses to Panel question Nos. 1 and 102.  
209 India's res ponse to Panel question No. 102, para.  3. 
210 United  States' comments on India's response to Panel question No. 102, para.  4. 
211 United  States' response to Panel question No. 2.  
212 India's panel request, WT/DS510/2, p.  2. 
213 United  States' response to Panel question No. 2.  
214 Senate Bill 5939, Section  3 (Exhibit IND -4). 
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  State University extension energy program215, the deadline for participants in the RECIP to receive 
payments216, and the establishment of certain procedures to manage the payment of incentives.217 
As these amendments did not change the essential design or operation of the incentive in question, 
we do not consider that the amendment effected by S enate  Bill 5939 changed the essence of the 
measure as contained in Sections  82.16.110  - 82.16.130 of the RCW.  
7.24.   As regards the need to make findings and recommendations in order to ensure a positive 
solution to this dispute, we note that Sections  82.16.110  - 82.16.130 of the RCW , as amended by 
Senate  Bill 5939 , embody the version of the measure that is currentl y in force, and therefore the 
version of the measure to which any meaningful findings of WTO -inconsistency and concomitant 
recommendations would need to be directed, and in respect of which such findings and 
recommendations would need to be implemented. We  also recall that India requests us to make 
findings and recommendations only on the measure  as amended in 2017 .218 Accordingly, we 
conclude that addressing the WTO -consistency of Sections  82.16.110  - 82.16.130 of the RCW as 
amended by S enate  Bill 5939 is ne cessary to ensure a positive solution to this dispute, and hence it 
is appropriate for us to make findings and recommendations on these Sections as amended.  
7.25.   Turning to the question of whether we should make findings and recommendations on the 
original vers ion of Sections  82.16.110  - 82.16.130 of the RCW as they existed at the time of panel 
establishment, we note that India has not specifically requested us to do so.219 Further, as noted 
above, the key subsection of the original measure providing for the econo mic development factors 
under the additional incentive remains unchanged. Accordingly, any findings or recommendations 
on Sections  82.16.110  - 82.16.130 of the RCW as amended would necessarily address the 
WTO-consistency of the additional incentive at issu e, including as set forth prior to S enate  Bill 5939. 
Findings on the original version of Sections  82.16.110  - 82.16.130 of the RCW would therefore be 
duplicative and hence unnecessary to secure a positive solution to this dispute.  
7.26.   As noted above220, India h as also requested us to make findings and recommendations on the 
'made -in-Washington' bonus set out in 82.16.165 of the RCW, which it considers to be part of 
Measure  1 as amended .221 India argues that Section  82.16.165 of the RCW falls within our terms of 
reference because it provides incentives "similar to RCW 82.16.120 in terms of their design and 
structure and the manner in which they operate and are mere extensions of the original measure".222 
India explains that the key differe nces relate to the scope of products subject to the incentive223, 
the incentive rates and calculation methods224, and the entity providing the certification.225 In India's 
view, "[t]he analysis presented by India with respect to [M]easure 1 as it existed at time  of the 
establishment of the Panel also applies to and covers, mutatis mutandis , RCW  82.16.165 read with 
WAC 504 -49".226  
7.27.   The United  States  is silent on Section  82.16.165 of the RCW introduced by S enate  Bill 5939. 
The United  States  merely refers to S enate  Bill 5939 in general , stating that "[a]s a factual matter, 
[Senate]  Bill [] 5939 reduced the level of incentives previously available under RECIP".227 
                                                
215 Senate Bill 5939, Section  3(9) (Exhibit IND -4). 
216 Senate Bill 5939, Section  3(10) (Exhibit IND -4). 
217 Senate Bill 5 939, Section  3(11) and (12) (Exhibit IND -4). 
218 See para.  7.19 above.  
219 See para.  7.19 above.  
220 See para.  7.19 above.  
221 India's responses to Panel question Nos. 1 and 102.  
222 India's response to Panel question No. 104.  
223 India's response to Panel qu estion No. 104, para.  13(i): "RCW 82.16.165 provides additional 
incentives for two specific types of products if they qualify as 'made in Washington'. These are solar modules 
and wind turbine or tower". See also India's response to Panel question No. 104, fn 27. 
224 India's response to Panel question No. 104, para.  13(ii): "[F]or each fiscal year beginning 2018 
through 2021 it provides for certain base rates (for each type of project) and a made in Washington bonus 
rate" (fn omitted).  
225 India's response to Panel question No. 104, para.  13(iii) ("[U]nlike RCW 82.16.120 where the 
Department of Revenue issued certifications, the 2017 Amendment provides that the certifications under RCW 
82.16.165 would be issued by Washington State Universit y extension energy program").  
226 India's response to Panel question No. 104, para.  14. 
227 United  States' response to Panel question No. 2.  
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  7.28.   We do not exclude that the "made in Washington" bonus may be similar in some respects to 
the Washington State  additional incentive. However, we consider that the two incentives are distinct 
from each other. Indeed, the text of Section  82.16.165(3)(a) indicates that the two incentives 
preclude each other , as "[n]o new certification may be issued under this section  to an applicant who 
submits a request for or receives an annual incentive payment for a renewable energy system that 
was certified under RCW 82.16.120 …".228 We also note that the Washington State additional 
incentive and the "made in Washington" bonus are stipulated in different provisions of Chapter 82.16 
of the RCW. They have different product coverage and calculation methods229, and became operative 
at different times.230 In our view, these considerations indicate that the "made in Washington" bonus 
is not a "mere extension[] of the original measure"231, as India argues, but a distinct incentive 
resulting from the several amendments to Chapter  82.16 introduced by S enate  Bill 5939.  
7.29.   Accordingly, we conclude that the "made in Washington" bonus is not an amen dment to the 
Washington State additional incentive but a distinct measure introduced by S enate  Bill 5939 
following the establishment  of the Panel  and, therefore, falls outside our terms of reference. 
We therefore see no basis to examine further whether we need to issue findings and 
recommendations on the "made in Washington" bonus.  
7.1.1.3   Measure  2: California Manufacturer Adder  
7.30.   As noted above232, the California Manufacturer Adder that India challenge s is provided for in 
Section  379.6 of the California Public Utili ties Code  (CPUC) . Rules and procedures concerning its 
implementation and administration are set out in the relevant California Self -Generation Incentive 
Program (SGIP)  Handbook. The 2016 version of the SGIP Handbook was replaced by the 2017 SGIP 
Handbook o f 18 December 2017, following the establishment of the Panel.  
7.31.   India argues that "the discriminatory element (through local content requirements) of the 
measure in question continues to be retained in 2017 SGIP Handbook".233 According to India, 
"the only dif ference [between the 2016 and the 2017 SGIP Handbook], for the purposes of the 
dispute, is that the 'California Supplier' requirement under the 2016 SGIP Handbook has been 
replaced by 'California Manufacturer' requirement under the 2017 SGIP Handbook".234 
India considers that "the relevant parent legislation[] together with the handbooks constitute a 
'series of measures' or successors in series and the Panel should issue findings and recommendations 
on the 'series of measures' taken together".235  
7.32.   The United  States responds that Measure  2 as amended is not within the Panel's terms of 
reference because it did not exist at the time of panel establishment and, therefore, "there is no 
basis for the Panel to issue legal findings or recommendations with respect to" it .236 
7.33.   In light of India's arguments, we understand India's request for findings and 
recommendations to encompass the relevant parent legislation, i.e. Section  379.6 of the CPUC , as 
well as both the 2016 SGIP Handbook and the 2017 SGIP Handbook.237 In decid ing whether to 
assess the WTO -consistency of the California Manufacturer Adder as implemented through the 2016 
or the 2017 SGIP Handbook, or both, we will examine three issues: (i)  whether India's panel request 
                                                
228 Amended version of Chapter 82.16 of the Revised Code of Washington, Section  82.16.165 (3)(a) 
(Exhibit IND -132).  
229 India's response to Panel question No. 104. We note that India identifies a third difference which 
relates to the entity issuing the certification. We are unclear about the validity of this statement since, as noted 
in the descriptive part, certain responsibi lities of the Department of Revenue with respect to the Washington 
State additional incentive were transferred to the Washington State University extension energy program since 
October 2017. See  para. 2.13 above.  
230 Section  82.16.165 provides that the period for filing applications under that provision started on 
1 July 2017, whereas the Washington State additional incentive was already in force by then. See Amended  
version of Chapter 82.16 of the Revised Code of Washington, Section  82.16.165 (1) (Exhibit IND -132).  
231 India's response to Panel question No. 104.  
232 See para. 2.19 above.  
233 India's response to Panel question No. 8.  
234 India's response to Panel question No. 8.  
235 India's response to Panel question No. 102, para.  5. 
236 United  States' comments on India's response to Panel question No. 102, paras.  4 and 8. See also 
United  States' response to Panel question No. 103.  
237 India's response to Panel question No. 8.  
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  is broad enough to encompass the relevant ame ndment; (ii)  whether there has been any change in 
the essence of the measure at issue as a result of the replacement of the 2016 SGIP Handbook by 
the 2017 SGIP Handbook ; and (iii) whether findings and , if relevant,  recommendations are necessary 
to secure a  positive resolution to the dispute.  
7.34.   We consider that India's panel request is broad enough to encompass the replacement of the 
2016 SGIP Handbook by the 2017 SGIP Handbook. In fact, although India's panel request does not 
refer to the 2017 SGIP Handbook,  which was published only at a later stage, it explicitly identifies 
as part of Measure  2 "any amendments, modifications, replacements, successor, and extensions 
thereto, and any implementing measure or any other related measures thereto".238 
7.35.   With respect to  the essence of the measure at issue, we note that, even though the 2017 
SGIP Handbook provides for a different product coverage and replaces the California Supplier  
requirement of the 2016 SGIP Handbook with a California Manufacturer requirement239, the 2017 
SGIP Handbook does not modify the key features of the California Manufacturer Adder. Indeed, there 
continues to be an additional incentive of 20 % for the installation of eligible distributed generation 
resources manufactured in California, as stipulated in Section  379.6 of the CPUC . In fact, we note 
that the text of Section  379.6 of the CPUC  remains identical after the replacement of the 2016 SGIP 
Handbook with the 2017 version. As the changes introduced by the 2017 SGIP Handbook did not 
modify the essent ial design or operation of the California Manufacturer Adder, we do not consider 
that the essence of this measure at issue was changed.  
7.36.   As regards the need to make findings and recommendations in order to ensure a positive 
solution to this dispute, we not e that the California Manufacturer Adder , as implemented through 
the 2017 SGIP Handbook , is the version of the measure currently in force, and therefore the version 
of the measure to which any meaningful findings of WTO -inconsistency and concomitant 
recomm endations would need to be directed, and in respect of which such findings and 
recommendations would need to be implemented. We also recall that India requests us to make 
findings and recommendations  on the relevant parent legislation, i.e. Section  379.6 o f the CPUC , as 
well as the 2016 SGIP Handbook and the 2017 SGIP Handbook.240 Accordingly, we conclude that 
addressing the WTO -consistency of California Manufacturer Adder as implemented through the 2017 
SGIP Handbook is necessary to ensure a positive solution to this dispute, and hence it is appropriate 
for us to make findings and  recommendations on this measure as amended.  
7.37.   Turning to the question of whether we should also make findings and recommendations on 
the California Manufacturer Adder as implemented through the 2016 SGIP Handbook, that is, as it 
existed at the time of panel  establishment, we first note that India has requested us to do so.241  
7.38.   We also recall  that one of the criteria past panels have invoked in decid ing whether  to issue 
findings and recommendations on the version of a measure that existed at the time of panel 
establishment has been if that version of the measure continues to impair a Member's benefits under 
a covered agreement.242 
7.39.   To explore this issue , we asked the parties to clarify  whether the 2016 SGIP Handbook 
continued to have an effect following its replace ment by the 2017 SGIP Handbook.243 
The United  States  did not address this issue. For its part, India submitted that the 2017 SGIP 
Handbook addresses the issue of migration from one Handbook to the other under the California 
Manufacturer Adder as follows:  
Beginning June 23, 2017, Program Administrators will deny requests for California 
Manufacturer status for manufacturers that have not met the above requirements, 
including suppliers which were previously approved. Also, beginning June 23, 2017, 
projects will receive the adder only when using equipment from an approved California 
                                                
238 India's panel request, WT/DS510/2, p.  3. 
239 See para. 2.15 above.  
240 See para.  7.31 above.  
241 See para.  7.19 above.  
242 Panel Report, China – Agricultural Producers , para. 7.85 (referring to Panel Reports, Indonesia – 
Autos , para. 14.206 and US – Upland Cotton , para. 7.1201).  
243 Panel question No. 110.  
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  Manufacturer under the above requirements. New projects that apply before June 23, 
2017 with a previously approved "California Supplier" may retain the adder only if that 
manufacturer is re-approved under the above requirements by the Incentive Claim 
stage.244 
7.40.   We understand from the above that, beginning 23 June 2017, manufacturers applying for 
California Manufacturer status as well as previously approved "California Supplier[s]" under th e 2016 
SGIP Handbook will have to fulfil the requirements set out in the 2017 SGIP Handbook if they want 
to start or continue benefiting from the California Manufacturer Adder. This raises the prospect that 
while incentives are being made available under the 2017 SGIP Handbook, some benefits may 
continue to flow from  the 2016 SGIP Handbook .  
7.41.   India has thus demonstrated that the 2016 SGIP Handbook may continue to be operative in 
certain circumstances . Bearing in mind our duty to secure a positive solution to the dispute, we 
conclude that addressing the WTO -consistency of the California Manufacturer Adder as implemented 
through the 2016 SGIP Handbook is also necessary to ensure a positive solution to this dispute . 
Therefore , it is appropriate for us  to make findings and recommendations on the California 
Manufacturer Adder as it existed at the time of panel establishment.  
7.1.1.4   Measure  8: Michigan Equipment Multiplier / Michigan Labour Multiplier  
7.42.   The Michigan Equipment Multiplier and the Michigan Labour Multiplier were contained in 
Act No. 295 of 2008 at the time the Panel was established.245 This Act was amended by Act No. 342 
of 2016246 on 21  December 2016. The text of Public Act No. 342247 indicates that the law was 
"[a]pproved by the Gov ernor" of Michigan on 21 December 2016, prior to panel establishment. 
However, it also states that the  legislation's  "effective date" is 20 April 2017, after the Panel was 
established. We understand, therefore, that although Public Act No. 342 was formally  enacted prior 
to panel establishment on 21 March 2017, it was not yet in force on that date. Instead, on 
21 March  2017, Public Act No. 295 remained in operation.  
7.43.   As noted above248, India requests us to make findings on the amended version of the Michigan 
Equipment and Labour Multipliers, as contained in Michigan Public Act No. 342.249  
7.44.   For its part, the United  States  "does not dispute that the amended version of Measure  8 is 
properly within the Panel's terms of reference" because, in the United  States ' view, the amended 
version of the measure was enacted prior to panel establishment, even though it only entered into 
force after that date.250  
7.45.   We note that, as the United  States  recognizes, the amendment to  Measure  8 was enacted 
prior to the Panel's establishment, but only entered into force after that date. It is, therefore, not 
entirely clear to us whether Measure  8 should properly be understood as having been amended 
before or after the Panel's establishment. On t he one hand, it could be argued that, insofar as the 
legislation was enacted prior to establishment, it was "in existence"251 on that date, even if it was 
not yet in force. On the other hand, it might be thought that, because the amendment only entered 
into force after the Panel's establishment , it did not exist on that date. In this view, the measure "in 
existence" at the time of the Panel's establishment would be the original version of the measure 
contained in Public Act No. 295.  
7.46.   Ultimately, however, we do not consider it necessary in this case to resolve this issue or to 
determine whether Public Act No. 342 was in existence at the time the Panel was established. This 
is because even if Public Act No. 342 was not in existence when the Panel was established , it clearly 
falls within our terms of reference on the basis of the three principles set out above . As regards the 
                                                
244 India's response to Panel question No. 110, para.  28. 
245 Public Act No. 295 of 2008 (Exhibit IND –43). 
246 Public Act No.  342 of 2016 (Exhibit IND –44). 
247 Michigan Public Act No. 342 (Exhibit IND -44). 
248 See para.  7.1 above.  
249 India's response to Panel question No. 102, para.  7. 
250 United  States' comments on India's response to Panel question No. 102, para.  8. 
251 Appellate Body Report, EC – Chicken Cut s, para.  156. 
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  scope of India's panel request,  we note that while that document does not reference Public Act 
No. 342, which entered into force only at a l ater stage, it explicitly identifies as part of Measure  8 
"any amendments, modifications, replacements, successor, and extensions thereto, and any 
implementing measure or any other related measures thereto".252 In our view, India's panel request 
is therefore  broad enough to encompass Public Act No. 342, which in effect "replaces" and succeeds, 
without changing, the provisions relating to the two Multipliers originally contained in Public Act 
No. 295. 
7.47.   With respect to the essence of the measure at issue, the re levant text in Public Act No. 295 
establishing the Equipment and Labour Multipliers is repeated word for word in Public Act No. 342, 
without modification. We therefore, see no basis to conclude that Public Act No. 342 changed the 
essence of the two Multipl iers in any way .  
7.48.   As regards the need to make findings and recommendations in order to ensure a positive 
solution to this dispute , we note that Public Act No. 342 is the version of the measure  currently in 
force, and therefore the version of the measure to  which any findings of WTO -inconsistency and 
concomitant recommendations would need to be directed, and in respect of which such findings and 
recommendations would need to be implemented. We also recall that India requests us to make 
findings and recommend ations only on Public Act No. 342 , and that the United  States  does not object 
to this.253 Accordingly, we conclude that addressing the WTO -consistency of the two Multipliers as 
contained in Public Act No. 342 is necessary to ensure a positive solution to thi s dispute, and hence 
that it is appropriate for us to make findings and recommendations on these Multipliers as set forth 
in Public Act No. 342.  
7.49.   Turning to the question of whether we should make findings and recommendations on the 
version of the measure (i .e. Public Act No. 295) that applied at the time of panel establishment, we 
note that India has not requested us to do so. Further, as noted above, the relevant parts of Public 
Act No. 342 reproduce exactly the relevant parts of Public Act No. 295, and thus, any findings on 
the former would necessarily clarify the WTO -consistency of the latter. Therefore, we conclude that 
findings or recommendations on the two Multipliers as contained in Public Act No. 295 would be 
duplicative and hence unnecessary to se cure a positive solution to this dispute.  
7.50.   Accordingly, we will review the WTO -consistency of, and make findings and, if relevant, 
recommendations on, the two Multipliers as contained in Public Act No. 342, and not on the original 
version of these two Multi pliers as contained in Public Act No. 295.  
7.1.1.5   Conclusion on measures amended following panel establishment  
7.51.   For the foregoing reasons, we will examine Measures 1, 2, and 8 as amended.  
7.52.   We have explained that, in our view, an examination of Measures 1 and 8 as they were in 
force at the time the Panel was established would be duplicative and unnecessary, especially bearing 
in mind our duty to secure a positive resolution to this dispute and the fact that India has not 
requested us to conduct such examination. Acc ordingly, we will make findings and, depending on 
our findings, also recommendations only on the amended versions of Measures 1 and 8.  
7.53.   Conversely, as regards Measure  2, and in light of both India's request and the possibility that 
benefits under the 2016 S GIP Handbook continue to exist in certain circumstances, we find it 
necessary to examine the California Manufacturer Adder as implemented through both the 2016 and 
2017 SGIP Handbooks in order to secure a positive resolution to this dispute. Accordingly, w e will 
make findings on both the original and the amended versions of Measure  2. Further, depending on 
our findings, we will make recommendations on the California Manufacturer Adder as implemented 
through the 2017 SGIP Handbook, and – to the extent the 20 16 SGIP Handbook continues to govern 
certain aspects of the California Manufacturer Adder for past applicants – also as implemented 
through the 2016 SGIP Handbook.  
                                                
252 India's panel request, WT/DS510/2, p.  8. 
253 India's response to Panel question No. 102, para.  7; and United  States' comments on India's 
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  7.1.2   Measures repealed following the establishment of the Panel  
7.54.   We now turn to consider whether w e can and should make findings and recommendations in 
respect of the Minnesota s olar energy production incentive (SEPI) and the Minnesota  solar thermal 
rebate, two program s identified by India as part of Measure  10 that were repealed following the 
Panel's establishment.  
7.1.2.1   Overview of applicable principles  
7.55.   As we explained in our preliminary ruling254, EU – PET (Pakistan)  is the most recent 
Appellate  Body report addressing a panel's role in respect of expired or repealed measures. That 
report distinguishes betwee n two different scenarios depending on whether measures expire or are 
repealed before or after panel establishment. We are faced here with the second situation since, as 
noted above255, the Minnesota s olar energy production incentive  (SEPI)  and the Minnesota  solar 
thermal rebate  were repealed after the Panel was established.  
7.56.   In EU – PET (Pakistan) , the Appellate  Body considered, in respect of measures that have 
expired or been repealed following panel establishment, that "[t]he fact that a measure has expired 
is not dispositive of the question of whether a panel can address claims with respect to that 
measure".256 Rathe r, according to the Appellate  Body, "where a measure expires in the course of 
the panel proceedings, the panel should, in the exercise of its jurisdiction, objectively assess whether 
the 'matter' before it, within the meaning of Article  7.1 and Article  11 of the DSU, has been fully 
resolved or still requires to be examined".257 In this regard , the Appellate  Body emphasized that "the 
repeal of a measure [does not] necessarily constitute[], without more, a 'satisfactory settlement of 
the matter ' within the mean ing of Article  3.4 [of the DSU], or a 'positive solution to the dispute ' 
within the meaning of Article  3.7" of the DSU.258 
7.57.   As we understand it, then, the fact that a measure was repealed after panel establishment 
does not, by itself, answer the question of w hether a panel should make findings on that measure. 
Rather, the central question is whether there remains an unresolved "matter" that needs to be 
addressed in order to provide a positive solution to the dispute.  
7.58.   When might a "matter" continue to exist not withstanding the repeal of a challenged measure? 
Past cases provide some guidance on this issue. One of the central  considerations is whether the 
effects of a measure continue to impair the benefits for a Member under a covered agreement.259 In 
light of the parties' arguments, we will have regard to this factor in assessing whether to make 
findings on the two repealed program s under Measure  10. 
7.59.   Turning to the issue of recommendations, we note that the expiry of a measure may affect 
whether a panel can make re commendations and, if so, the kind of recommendations it makes.260 
Depending on the circumstances, it may or may not be appropriate for a panel that has made findings 
on a measure that was repealed after panel establishment to make recommendations in respect  of 
that measure.261 Indeed, the Appellate  Body has held that it may amount to legal error for a panel 
to recommend that a Member bring into conformity a measure that the Panel has found to have 
been repealed.262 In our view, therefore, a panel's decision whet her to make recommendations in 
respect of a repealed measure must depend on a careful examination of the nature of the subsisting 
"matter", and whether there are concrete actions or steps that a respondent could take, beyond 
repeal, to ensure that the repe aled measure is no longer impairing benefits accruing to a Member 
under the covered agreements.  
                                                
254 Preliminary ruling of the Panel, paras.  3.27-3.28, Annex D -1. 
255 See para. 2.56 above.  
256 Appellate Body Report, EU – PET (Pakistan) , paras.  5.25 and 5.27 (referring to Appellate Body 
Report, EU – Fatty Alcohols (Indonesia) , para.  5.179).  
257 Appellate Body Report, EU – PET (Pakistan) , para.  5.43. 
258 Appellate Body Report, EU – PET (Pakistan) , para.  5.27 (fns  omitted).  
259 Panel Report, China – Agricultural Producers , para.  7.85 (fns  omitted).  
260 Appellate Body Report, US – Upland Cotton , para.  272. 
261 Appellate Body Report, EU – Fatty Alcohols (Indonesia) , para.  5.200 and cases cited therein.  
262 Appellate Body Report, US – Certain EC Products , para.  81. 
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  7.60.   Bearing these considerations in mind, we now turn to examine whether we can and should 
examine the WTO -consistency of the SEPI and the Minnesota solar thermal rebate, even though 
both program s were repealed after the Panel was established.  
7.1.2.2   Minnesota s olar energy production incentive (SEPI)  under Measure  10 
7.61.   As noted above263, the Minnesota legislature repealed the Minnesota solar energy production 
incentive program  on the installation of solar photovoltaic (PV) modules (SEPI) on 22 May 2017, 
after the Panel was established.264  
7.62.   India requests that we nonetheless issue both findings and recommendations on this program , 
arguing that "the measure continues to be in operation and has an ongoing effect".265 India recalls 
in this regard that the SEPI explicitly provides that "[w]hile the last date for approval of an application 
for SEPI was fixed at May 1, 2017, the incentives payment may continue up to 10 years" .266  
7.63.   The United  States  does not explicitly address India's request for findings and 
recommendations with respect to this program ; it merely asserts that "[it] does not dispute that 
those measures were in existence on the date of panel establishment".267 Moreo ver, the 
United  States  does not contest that "[o]wners whose applications were approved by May  22, 2017, 
are eligible to receive annual incentive payments under the Minnesota Solar Energy Production 
Incentive for a period of ten years from the time their i nstalled solar energy system begins 
generating electricity". The United  States  adds that "[n]o further payments, however, are permitted 
after October 31, 2028".268 We understand this as indicating that the United  States  does not contest 
India's assertion tha t incentive payments under the SEPI may continue even though the program 
has been repealed.  
7.64.   We note that both parties agree that payments under the SEPI may continue, even after 
repeal, for those applicants whose applications were approved prior to May 2017.269 We understand 
this as confirming that the SEPI has ongoing effects, in the form of potential payments, that continue 
to exist even after the program's repeal. As noted above, past cases  have indicated that it may be 
appropriate for a panel to assess the WTO -consistency of an expired measure if that measure may 
continue to have effects.  
7.65.   In light of the above, we consider it appropriate to make findings on this program , even 
though it was repealed during these proceedings.  
7.66.   Turning to the questio n of whether we should make recommendations if we find that the SEPI 
is WTO -inconsistent, we recall that the Appellate  Body has indicated that "the fact that a measure 
has expired 'may affect' what recommendation a panel may make".270 We are of the view that , given 
the potential continuing effects of the SEPI program , a finding of inconsistency would warrant a 
qualified recommendation that the United  States  bring itself into compliance, to the extent that the 
incentives under this program  may continue to be p aid following its repeal, and thus may continue 
to impair benefits accruing to India under a covered agreement.  
                                                
263 See para. 2.56 above.  
264 Senate Session Laws, Chapter 94, S.F. 1456 (Exhibit IND -100). We discuss the relevance of this 
repeal in our findings below.  
265 India's response to Panel question No. 102, para.  8. 
266 India's response to Panel question No. 102, para.  8 (referring to 2017 Minnesota Session Laws, S.  F. 
No. 1456, Chapter 94, Article 10, Section  22, Subdivision 1 (Exhibit IND -100)).  
267 United  States' comment on India's response to Panel question No. 102.  
268 United  States' response to Panel question No. 117, para.  8. 
269 We nonetheless note that India and the United  States do not agree on the deadline for approving 
applications and the last day of payment. The disagreement between the parties on these particular  issues is 
irrelevant for the purposes of our analysis.  
270 Appellate Body Reports, China – Raw Materials , para.  264. 
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  7.1.2.3   Minnesota solar thermal rebate  under Measure  10 
7.67.   As noted above271, the Minnesota legislature repealed the rebate program  on the installation 
of solar thermal systems on 22 May 2017, after the Panel was established.272 We recall that, following 
a request for a preliminary ruling by the United  States , we found that the Minnesota solar thermal 
rebate is within our terms of reference.273 Our preliminary rul ing addressed the evolution of India's 
case from its consultations request to its panel request in regard to the Minnesota  solar thermal 
rebate274, not the fact that the Minnesota solar thermal rebate was repealed following panel 
establishment. The United  States did not contest the latter issue in its preliminary ruling request, 
and indeed it arose only at a later stage in these proceedings.  
7.68.   In response to a  question  from the Panel , India clarified that, d espite the repeal of the 
Minnesota solar thermal rebate following panel establishment, it is seeking both findings and 
recommendations on this program  because, in India's view, it "continues to be in operation and has 
an ongoing effect".275 In particular, according to India, "applications whi ch were approved prior to 
the effective date of Senate File  [sic] No. 1456 w[ill] continue to receive incentives until the year 
2023".276 
7.69.   The United  States  does not explicitly address India's request for findings and 
recommendations with respect to this program; it merely asserts that "[it] does not dispute that 
those measures were in existence on the date of panel establishment".277 However, the 
United  States  submits that, as a matter of fact, "[r]ebate payments are not ongoing" under this 
program . According  to the United  States , the legislation that repealed the Minnesota solar thermal 
rebate (i.e. Senate Bill No. 1456) provides that "no rebate payments would be paid to owners whose 
applications were approved after May 30, 2017".278 Senate Bill No. 1456 further clarifies that 
"[s]ystem owners were required to install the approved solar thermal system by December 31, 2017, 
to remain eligible for the rebate payment [and] [t]he Minnesota Department of Revenue was 
required to release rebate payments by July 1, 2018, at the latest".279 Therefore, the United  States  
contends that "the latest -in-time payment under the Minnesota Solar Thermal Rebate would have 
occurred no later than July 1, 2018" .280  
7.70.   India responds that the United  States  has wrongly relied upon evidence, name ly certain 
excerpts from the 2017 Guide for Applicants, which does not seem to be applicable to the Minnesota 
solar thermal rebate program .281 India further states that, even if the Guide were applicable to the 
solar thermal rebate, it would not override the  provisions of the parent statute, in particular 
Article  10, Section  28 of the Senate Bill No. 1456, which provides that no rebate will be paid to 
applications approved after its effective date. To the contrary, according to India, the Guide indicates 
that "applications which were approved prior to the effective date of Senate File [sic] No. 1456 would 
continue to receive incentives until the year 2023".282 
7.71.   We note that Section  28 of Senate Bill No. 1456 provides as follows with respect to the repeal 
of the Minnesota solar thermal rebates:  
(a) No rebate may be paid under Minnesota Statutes 2016, section 216C.416, to an 
owner of a solar thermal system whose application was approved by the commissioner 
of commerce after the effective date of this act.  
                                                
271 See para. 2.56 above.  
272 Senate Session Laws, C hapter 94, S.F. 1456 (Exhibit IND -100). We discuss the relevance of this 
repeal in our findings below.  
273 Preliminary ruling of the Panel, para.  4.37, Annex D -1. 
274 United  States' first written submission, paras.  41-42. 
275 India's response to Panel question N o. 102, para.  8. 
276 India's response to Panel question No. 102, para.  8. 
277 United  States' comment on India's response to Panel question No. 102.  
278 United  States' response to Panel question No. 117, para.  9. 
279 United  States' response to Panel question No. 11 7, para.  9. 
280 United  States' response to Panel question No. 117, para.  9. 
281 India's comment on the United  States' response to Panel question No. 117 (referring to the 
Minnesota Department of Commerce Guidance for Completing the Made in Minnesota Solar Ince ntive 
Application - A 2017 Reference Guide for Applicants, 30 December 2016 (Exhibit US -28)). 
282 India's comments on the United  States' response to Panel question No. 117, para.  6. WT/DS510/R  
 
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  (b) U nspent money remaining in the account established under Minnesota Statutes 
2014, section 216C.416, as of July 2, 2017, must be transferred to the C -LEAF account 
established under Minnesota Statutes 2016, section 116C.779, subdivision 1.  
7.72.   Section  28(a) refer s to the point in time at which an application must be approved in order 
for the applicant to receive rebate payments. However, the provision does not address the issue of 
the timing of any final payment , in particular in respect of applications approved p rior to the effective 
date of the repeal legislation . Likewise, Section  28(b) refers only to "unspent money" being 
transferred to another account, but it does not specify whether rebates will continue to be paid from 
this new account. Accordingly, in our v iew, the text of Section  28 of Senate Bill No. 1456 does not 
clearly answer the question whether rebate payments may continue following the repeal of the 
Minnesota solar thermal rebate, in particular with respect to previously approved recipients.  
7.73.   Turning to the section of the 2017 Guide for Applicants on which the United  States  relies as 
evidence that post -repeal incentive payments are not permitted, we note that it provides that the 
"[p]ayments will [be] allocated as provide[d] under Minnesota Statute 216 C.415".283 This section of 
the Guide seems to refer only to the SEPI program, as it deals with "[i]ncentive payments … to an 
owner of grid -connected solar photovoltaic modules …".284 There is no mention in this section of solar 
thermal systems, which are the pr oducts at issue under the Minnesota solar thermal rebate program  
set out in Section  216C.41 6. 
7.74.   At the same time, other parts of the 2017 Guide for Applicants are , in our view,  more 
ambiguous as concerns the Guide's scope. For instance, in one place the Guid e indicates that 
applicants "will be able to select which Made in Minnesota Program [they] would like to apply for … 
PV Production Incentive, Solar Thermal Rebate or PV Community Solar Garden Program".285 There 
are also other references to solar thermal syst ems throughout the Guide.286 
7.75.   Based on the evidence before us, it is unclear whether the above -referenced provisions on 
payments contained in the 2017 Guide for Applicants apply to the Minnesota solar thermal rebate 
and, if so, how this Guide relates to the r elevant Sections of the 2016 Minnesota Statutes, 
particularly in light of their repeal on 22 May 2017 by Senate Bill No. 1456.  
7.76.   We recall that, having requested us to make findings and recommendations on the Minnesota 
solar thermal rebate, India bears the b urden of showing that this repealed program  has ongoing 
effects. In light of the limited evidence before us, we are not in a position to determine whether 
payments under the Minnesota solar thermal rebate program  continue following its repeal. 
Accordingly,  we find that India has not made a prima facie case that the Minnesota  solar thermal 
rebate has ongoing effects, and therefore, constitutes a "matter" before us which "still requires to 
be examined" in order to provide a positive solution to the dispute.287 As a result, we conclude that 
India has not demonstrated that we need to make findings and recommendations on the Minnesota 
solar thermal rebate in order to secure a positive resolution to this dispute.  
7.1.2.4   Conclusion on measures repealed following the establ ishment  of the Panel  
7.77.   For the foregoing reasons, we will not make any findings or recommendations on the 
Minnesota solar thermal rebate. As regards the SEPI, we will make findings and  qualified  
recommendations to the extent that incentives granted under thi s program  may continue to be paid 
following its repeal, and thus may continue to impair the benefits accruing to India under a covered 
agreement.  
                                                
283 Minnesota Department of Commerce Guidance for Completing the Made in Minne sota Solar Incentive 
Application - A 2017 Reference Guide for Applicants, 30 December 2016, p.  3 (Exhibit US -28). 
284 2016 Minnesota Statutes, Section  216C.415 (Exhibits IND -66 and IND -100) (emphasis  added).  
285 Minnesota Department of Commerce Guidance for Co mpleting the Made in Minnesota Solar Incentive 
Application - A 2017 Reference Guide for Applicants, 30 December 2016, p.  9 (Exhibit US -28) 
(emphasis  added).  
286 Minnesota Department of Commerce Guidance for Completing the Made in Minnesota Solar Incentive 
Application - A 2017 Reference Guide for Applicants, 30 December 2016, pp.  12 and 17 (Exhibit US -28). 
287 Appellate Body Report, EU – PET (Pakistan) , para.  5.43. 
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  7.2  Order of analysis  
7.78.   India presents its claims in this dispute beginning with Article  III:4 of the GATT  1994, 
followed  by Articles  2.1 and 2.2 of the TRIMs  Agreement, Articles  3.1(b), 3.2, and 25 of the 
SCM Agreement, and, finally, Article  XXIII:1(a) of the GATT  1994.288 The United  States has 
addressed India's claims in the same order.289  
7.79.   The parties suggest that the P anel follow the same order in its own analysis.290 
7.80.   According to the Appellate  Body, "[a]s a general principle, panels are free to structure the 
order of their analysis as they see fit"; "[a]t the same time, panels must ensure that they proceed 
on the basis o f a properly structured analysis to interpret the substantive provisions at issue."291 
More specifically, as regards the specific provisions invoked by India in this dispute, the 
Appellate  Body has explained that "the national treatment obligations in Articl e III:4 of the 
GATT  1994 and the TRIMs  Agreement, and the disciplines in Article  3.1(b) of the SCM  Agreement, 
are cumulative", and  that there is "nothing in these provisions to indicate that there is an obligatory 
sequence of analysis to be followed where claims are made under Article  III:4 of the GATT  1994 and 
the TRIMs  Agreement, on the one hand, and Article  3.1(b) of the SCM  Agreement, on the other 
hand."292 Thus, the order of analysis of claims under Article  III:4 of the GATT  1994, the 
TRIMs  Agreement, an d Article  3 of the SCM  Agreement falls "within the panel's margin of 
discretion".293 
7.81.   In considering how to exercise this discretion, we recall that for India, "the core of [its] claims 
lie[s] in the discriminatory treatment  between the imported products and 'like' products of domestic 
origin"294, and that, according to India, "[its] claims under the TRIMs  Agreement and the 
SCM Agreement clearly emanate from the violation of Article  III:4 of the GATT  1994".295 In light of 
this position, and absent "a  mandatory seq uence of analysis" among these provisions "which, if not 
followed, would amount to an error of law"296, we see no reason to depart from the sequence jointly 
advocated by the parties.297 We also note that several panels facing similar claims have adopted this 
sequence.298 
7.82.   We will therefore start by reviewing India's claims under Article  III:4 of the GATT  1994, before 
turning to India's additional, follow -on "discriminatory treatment" claims under Articles  2.1 and 2.2 
of the TRIMs  Agreement and Articles  3.1(b) and 3.2 of the SCM  Agreement.  
                                                
288 See India's first and second written submissions, and its opening and closing statements at the first 
and second meetings of the Panel.  
289 See the United  States' first and second written submissions, and its opening and closing statements 
at the first and second meetings of the Panel. The United  States has not specifically addressed India's claim 
under Article  XXIII:1(a) of the GATT  1994.  
290 More specifically, India "invites the Panel to assess the claims in the following order of analysis for 
each of the measures at issue: (i) the Panel may first examine India's claims under Article III:4 of the 
GATT  1994; (ii) the Panel may then rule on India's claims with respect to Article 2.1 of the TRIMs Agreement 
followed by the claims under Article 2.2 of the TRIMs Agreement; (iii) the Panel may then rule on claims under 
Article 3.1(b) read with Article 3.2 of th e SCM Agreement followed by claims under Article 25 of the 
SCM Agreement; and (iv)  finally, the Panel may rule on claims under Article XXIII:1 of the GATT  1994". India's 
opening statement at the first meeting of the Panel, para.  16. As regards Article XXII I:1 of the GATT  1994, 
India specifies that it "has  claimed that the measures at issue, individually and/or collectively, nullify or impair 
the benefits accruing to it under Article XXIII:1(a) of the GATT  1994". India's opening statement at the first 
meetin g of the Panel, para.  15. See also the United  States' response to Panel question No. 53.  
291 Appellate Body Report, Canada – Wheat Exports and Grain Imports , paras.  126-127. 
292 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Progra m, para.  5.5. 
293 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para.  5.8 
(footnote omitted, referring to Appellate Body Report, Canada – Wheat Exports and Grain Imports , para.  126).  
294 India's opening statement at the first meeting of the Panel, para.  11 (emphasis  original).  
295 India's opening statement at the first meeting of the Panel, para.  11. 
296 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para.  109. 
297 According t o the Appellate Body, "panels may find it useful to take account of the manner in which a 
claim is presented to them by a complaining Member". Appellate Body Report, Canada – Wheat Exports and 
Grain Imports , para.  126. 
298 Several panels facing claims under Article III:4 of the GATT  1994, Article 2 of the TRIMs  Agreement, 
and Article 3 of the SCM Agreement adopted an order of analysis that sequenced these three claims in the 
aforementioned order. See Panel Reports, China – Auto Parts ; Canada – Autos ; and Brazil – Taxation . 
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  7.83.   Following our analysis of India's claims concerning "discriminatory treatment", we will turn to 
India's notification claim under Article  25 of the SCM  Agreement and its claim of nullification or 
impairment of benefits under Artic le XXIII:1(a) of the GATT  1994.  
7.3  India's claim s under Article  III:4 of the GATT  1994  
7.3.1   Introduction  
7.84.   According to India, each measure at issue299 is inconsistent with the  obligations of the  
United  States ' under Article  III:4 of the GATT  1994 because they accord  treatment  less favourable 
to imported products than  to like domestic  products , i.e.  products originating in specific 
municipalities or States  of the United  States .300 According to the United  States , India has failed to 
establish that the  measures at issue breach Article  III:4 of the GATT  1994.301 In particular, according 
to the United  States , India has not met its burden of demonstrating that these measures (i) affect  
the sale, purchase, transportation, distribution or use of products; or ( ii) accord less  favourable 
treatment to imported products within the meaning of that provision.302 
7.85.   To establish a violation of Article  III:4 of the GATT  1994, the following three elements must 
be satisfied:  
a) that the imported and domestic products at issue 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 p roducts are accorded treatment less favourable than that accorded to 
like domestic products.303 
7.86.   We now turn to analyse each of these elements in respect of  each of the measures at issue. 
As discussed above304, Measures 1, 2, and 8, and two program s under Measu re 10 were amended 
or repealed following panel establishment. We have concluded that we will make findings and, where 
appropriate, recommendations, on India's claims with respect to Measures 1, 2 and 8  as amended . 
In the case of Measure  2, we will also exa mine the original version as elaborated by the 2016 SGIP 
Handbook given that some of its aspects may continue to be operative. As  regards the two program s 
under Measure  10 repealed following panel establishment, we have decided not to make any findings 
or recommendations on the Minnesota solar thermal rebate. We will only make findings on the 
Minnesota s olar energy production incentive program  on the installation of solar  photovoltaic 
modules (SEPI), and issue recommendations on this program  insofar as it has ongoing effects.  
7.3.2   Products at issue and " likeness"   
7.87.   India argues that each of the measures at issue discriminates between like imported and 
domestic products. More sp ecifically, according to India, the measures at issue provide for 
differential treatment based on where the products were manufactured or assembled, or based on 
the origin of the workforce used in their manufacture. India contends that because the origin o f the 
                                                
299 India's first written submission, para.  5. See also India's first written submission, paras.  30, 150, 
253, 346, 443, 543, 655, 752, 849, 991 and 1099.  
300 India's first written submission, paras.  31, 151, 254, 347, 444, 544, 656, 753, 850, 9 92 and 1100. 
In its panel request, India claims that the challenged measures "are inconsistent with the obligations of the 
U.S. under the … GATT  1994", "[i]n particular, … Article III:4 of the GATT  1994 because the measures provide 
less favourable treatmen t to imported products than that accorded to like products … originating in [relevant 
domestic territories, i.e. municipalities or States]". India's panel request, WT/DS510/2, pp.  2-11. 
301 United  States' first written submission, para.  75. 
302 United  States' first written submission, para.  75. 
303 Appellate Body Report, Korea – Various Measures on Beef , para.  133, referenced in India's first 
written submission, paras.  33, 153, 256, 349, 446, 546, 658, 755, 852, 994 and 1102; and United  States' first 
written subm ission, para.  77. See also European  Union's third party written submission, para.  18. 
304 See Section  7.1 above.  
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  relevant products is the "sole criterion" for differential treatment under the measures at issue, 
such products qualify as like products within the meaning of Article  III:4 of the GATT  1994.305  
7.88.   The United  States  has not contested that the relevant dom estic and imported products are 
like products within the meaning of Article  III:4, nor does it challenge the legal standard for likeness 
relied upon by India.  
7.89.   The Appellate  Body has stated that "a determination of 'likeness' under Article  III:4 [of the 
GATT 1994] is, fundamentally, a determination about the nature and extent of a competitive 
relationship between and among products".306 Usually, assessing whether products are like requires 
a careful and holistic analysis of the evidence on the record, taking into account the four Border Tax 
Adjustment  criteria.307 However, several past cases  support the proposition that where a measure 
distinguishes between products solely on the basis of origin, the likeness of the products so 
distinguished can be presumed.308 Notably, in Argentina – Financial Services , the Appellate  Body 
recognised that various "[p]anels have held that, rather than invariab ly establishing 'likeness' on the 
basis of the relevant criteria, a complainant may establish 'likeness' by demonstrating that the 
measure at issue makes a distinction based exclusively on the origin of the product."309 As India 
argues310, this indicates that where a measure distinguishes between products solely on the basis of 
origin, a detailed likeness analysis based on the Border Tax Adjustment  criteria may not be 
necessary.  
7.90.   We now examine whether the relevant products under each measure at issue are like w ithin 
the meaning of Article  III:4 of the GATT  1994, and in particular whether, as India argues, each of 
the measures distinguishes between relevant products solely on the basis of origin.  
7.3.2.1   Measure  1: Washington State additional incentive  
7.91.   As noted311, the Was hington State additional incentive is provided for customer -generated 
electricity produced using solar inverters, solar modules, stirling converters, or wind blades 
manufactured in Washington  State . 
7.92.   India has identified the following products as relevant u nder the Washington State additional 
incentive: (i) solar modules; (ii) stirling converters; (iii) inverters used in a solar or wind generator; 
and (iv) blades used in a wind generator.312 India argues that "the only distinguishing criteria for 
obtaining the  additional/higher incentives is whether or not certain specified components are of 
Washington -origin."313 India further argues that "RCW 82.16.120 (4) read with WAC 458 -20-273 
(501)(b) makes the origin of the specified products as the sole criteria for granting higher incentives 
upon production of electricity using a renewable energy system."314 
7.93.   The United  States  has not contested this aspect of India's claim under Article  III:4 of the 
GATT  1994.  
                                                
305 India's first written submission, paras.  35-40, 155 -161, 258 -264, 351 -356, 448 -453, 548 -553, 
660-666, 757 -766, 854 -862, 996 -1001 and 1104 -1109 (referring to Panel Reports, India – Autos , para.  7.174; 
Canada  – Wheat Exports and Grain Imports , para.  6.164; Argentina – Hides and Leather , 
paras.  11.168 -11.170; Canada – Autos , para.  10.74; and Turkey – Rice, para.  7.213 -7.216).  
306 Appellate Body Report, EC – Asbestos , para.  99. 
307 Appellate Body Report, EC – Asbestos , paras.  101-103. 
308 See e.g. Panel Reports, India – Autos , para.  7.174; Canada – Autos , para.  10.74; and Turkey – Rice, 
paras.  7.214 -7.216.   
309 Appellate Body Report,  Argentina – Financial Services , para.  6.36. 
310 India's first written submission, paras.  35-40, 155 -161, 258 -264, 351 -356, 448 -453, 548 -553, 660 -
666, 757 -766, 854 -862, 996 -1001 and 1104 -1109 (referring to Panel Reports, India – Autos , para.  7.174; 
Canada – Wheat Exports and Grain Imports , para.  6.164; Argentina – Hides and Leather , paras.  11.168 - 
11.170; Canada – Autos , para.  10.74; and Turkey – Rice, para.  7.21).  
311 See para. 2.8 above.  
312 India's first written submission, para.  35. 
313 India's first written su bmission, para.  36.  
314 India's first written submission, para.  40. 
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  7.94.   Section  82.16.120(4) of the Revised Code of Washington  (RCW )315, which establishes the 
different economic development factors to be applied to the base rate in order to calculate the final 
incentive rate, refers to the same products  as those identified by India .316  
7.95.   Section  458-20-273(601)(a) of the Washington Adminis trative Code (WAC)  defines the 
products at issue.317 Additionally, paragraph (b) of Section  458-20-273(601) of the WAC clarifies 
that "the [D]epartment of [R]evenue considers various factors in determining if a person combining 
various items into a single p ackage is engaged in a manufacturing activity" , and that "[a]ny single 
one of the … factors is not considered conclusive evidence of a manufacturing activity".318 The WAC 
further provides that, following a request from the manufacturer addressed to the Department of 
Revenue, and a field visit by the Department of Revenue of the manufacturing facilities to view the 
manufacturing process for the product, the Department of Re venue will approve or disapprove the 
manufacturer's certification of a product as made in Washington State.319 
7.96.   Accordingly, to qualify for the differential treatment in Section  82.16.120(4) of the RCW, the 
products must comply with the definitions contained in Section  458-20-273(601)(a) of the WAC, 
and the manufacturer of the products must obtain a certification of a product qualifying as made in 
Washington State from the Department of Revenue. Imported products may meet the former but 
not the latter requirem ent.  
7.97.   Thus, we find that, as India has argued, the Washington State additional incentive 
distinguishes solely on the basis of origin  with regard to solar modules , stirling converters , inverters 
used in a solar or wind generator , and blades used in a wind g enerator . In light of the above -cited 
guidance from past cases , and noting the absence of any rebuttal by the United  States  on this point, 
we find that the products at issue under Measure  1 are like for the purposes of Article  III:4 of the 
GATT  1994. 
7.3.2.2   Measu re 2: California Manufacturer Adder  
7.98.   As noted320, the California Manufacturer Adder consists of an additional 20% incentive 
payment for the installation of eligible distributed generation resources "from a California Supplier " 
(under the 2016 California Self -Generation Incentive Program  (SGIP) Handbook)  or generation and 
energy storage equipment "manufactured in California" (under the 2017 SGIP Handbook).  
7.99.   India has identified the relevant product under  the California Manufacturer Adder as the 
"'eligible equipment'  … as set out under the [SGIP] Handbooks" .321 In its responses to our questions, 
India clarified that the eligible products under the 2016 SGIP Handbook are "eligible distributed 
generation or [Advanced Energy Storage] AES technologies"322, whereas the 2017  SGIP Handbook 
limits eligible products to c ertain generation equipment and certain storage equipment.323 India 
argues that "[t]he text of the measures at issue under the Handbooks that infix the California 
Manufacturer Adder indicates that the determinant of the challenged additional incentive is bas ed 
either on the specific eligible equipment having been manufactured in California or on the specified 
                                                
315 Revised Code of Washington, Chapter 82.16, revised by Revised Senate Bill 5939 (Exhibit IND -5). 
316 See also Washington Administrative Code, Section  458-20-273 (Exhibit IND -3). 
317 See para. 2.8 above.  
318 These factors are the following: (i) the ingredients are purchased from various suppliers; (ii) the 
person combining the ingredients attaches his or her own label to the resulting product; (iii) the ingredients 
are purchased in bulk and broken down to sma ller sizes; (iv) the combined product is marketed at a 
substantially different value from the selling price of the individual components; and (v) the person combining 
the items does not sell the individual items except within the package. See Washington Ad ministrative Code, 
Section  458-20-273 (601)(b) (Exhibit IND -3). 
319 Washington Administrative Code, Section  458-20-273 (602) (Exhibit IND -3). 
320 See para. 2.14 above.  
321 India's first written submission, para.  161. See also India's first written submission, paras.  155-156. 
322 India's response to Panel question No. 109, para.  26 (referring to the 2016 SGIP Handbook, 
para. 3.1 and p.  76 (Exhibit IND -16)).  
323 India's response to Panel question No. 109, para.  27 (referring to the 2017 SGIP Handbook, p.  26 
(Exhibit IND -15)). 
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  percentage of total value of the eligible equipment having been manufactured in California by a 
California Supplier or a California Manufacturer, as the  case may be".324 
7.100.   The United  States  has not contested this aspect of India's claim under Article  III:4 of the 
GATT  1994. 
7.101.   The 2016 and 2017 SGIP Handbooks defin e some of the products at issue.325 As mentioned 
above326, both the 2016 and 2017 SGIP Handbooks distinguish between, on the one hand, "eligible 
distributed generation or AES technologies from a California Supplier "327 and "equipment … 
manufactured in California "328, respectively, and, on the other hand, relevant  distributed generation,  
and AES technologies and equipment of another origin.  
7.102.   Under both requirements, i.e. " California Supplier " in the 2016 SGIP Handbook and 
"manufactured in California" in the 2017 SGIP Handbook, the legislation distinguishes between  the 
place where the products are manufactured. The definition of "California Supplier " under the 2016 
SGIP Handbook explicitly req uires that the supplier manufacture the relevant products in California, 
in addition to other requirements concerning the location in California of the owners or policymaking 
officers' domicile, and the permanent principal office or the manufacturing facil ity. It further includes 
references to the California residence of the workers and the need for the company to be licensed 
in California. In turn, t he 2017 SGIP Handbook provides that the "manufactured in California" 
requirement will be fulfilled "if at le ast 50% of the value of the capital equipment has been made in 
a dedicated production line by an approved California Manufacturer" .329 The definition of California 
Manufacturer under the 2017 SGIP Handbook reiterates the link to the California origin of the 
equipment by requiring that the manufacturing facility be located in California, and the manufacturer 
be licensed to conduct business in that state.330 It is therefore clear , in our view, that imported 
products could never qualify for the California Manufacturer Adder, either under the 2016 or the 
2017 SGIP Handbook.  
7.103.   Accordingly, we find that, as India has argued, the California Manufacturer Adder  
distinguishes solely on the basis of origin with regard to  the relevant distributed generation  
technologies. In light of the above -cited guidance from past cases , and noting the absence of any 
rebuttal by the United  States  on this point, we find that the products at issue under Measure  2 are 
like for the purposes of Article  III:4 of the GATT  1994. 
7.3.2.3   Measure  4: Montana tax incentive  
7.104.   As explained above331, the Montana tax incentive for ethanol production provides "tax 
incentive[s] for the production of ethanol to be blended for ethanol -blended gasoline"332, provided 
that production is in Montana and uses Montana agricultural products, including Montana wood or 
wood products.333  
7.105.   According to India, under the Montana tax incentive , "greater incentives are provided for 
ethanol which is produced from Montana agricultural products including Montana wood and wood -
based products".334 In India's view, "the tax incentive being provided to ethanol distributors is based 
solely on their usage of raw material sourced from Montana ", and "[t]he incentive is, therefore, 
contingent on and proportionate to the origin of the raw material".335 India concludes that because 
"the distinction between the ethanol produced is limited to their origin of the raw material used [ sic] 
                                                
324 India's first written submission, para.  156. 
325 See para. 2.18 above. We recall that the 2016 SGIP Handbook does not define the term "eligible 
distribut ed generation technologies", and the 2017 SGIP Handbook provides a list of equipment covered under 
the term "generation and energy storage equipment" instead of providing a definition.  
326 See paras.  2.15 - 2.17 above.  
327 2016 SGIP Handbook, p.  34 (Exhibit IND -16) (emphasis  added).  
328 2017 SGIP Handbook, p.  25 (Exhibit IND -15) (e mphasis  added).  
329 2017 SGIP Handbook, p.  26 (Exhibit IND -15). 
330 2017 SGIP Handbook, p.  102 (Exhibit IND -15). 
331 See para.  2.20 above.  
332 Montana Annotated Code, Section  15-70-502 (Exhibit IND -31). 
333 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
334 India's first written submission, para.  351. 
335 India's first written submission, para.  356. 
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  … it will be held to be 'like' to those products of Montana -origin for the purposes of Article  III:4 of 
the GATT  1994".336 
7.106.   The United  States  has not contested this aspect of India's claim under Article  III:4 of the 
GATT  1994. 
7.107.   As we understand it, India's position is that there are potentially two sets of products that 
are like for the purposes of analysing the Montana tax incentive : (i) wood and wood -based products ; 
and (ii) ethanol made from wood or wood -based products.  
7.108.   Section  15-70-522 of the Montana Annotated Code (MCA) provides for a tax incentive 
payable to ethanol distributors on "ethanol … produced in Mon tana from Montana agricultural 
products, including Montana wood or wood products".337 The measure does not make provision for 
a tax incentive on ethanol produced outside of Montana. Similarly, ethanol produced in Montana 
from non -Montana wood or wood -based p roducts is only eligible for the incentive "when Montana 
products are not available".338 The measure does not suggest that there is any difference between 
Montana and non -Montana -origin ethanol and wood and wood -based products in terms of physical 
characteri stics, consumer tastes and habits, tariff classification, end -uses, or any other criterion. Nor 
does it suggest that there is any difference between ethanol produced in Montana from Montana -
origin wood or wood -based products, on the one hand, and ethanol p roduced outside of Montana or 
using non -Montana wood or wood -based products, on the other hand. Moreover, the United  States  
has not argued that any such differences exist.  
7.109.   Accordingly, we find that, as India has argued, the Montana tax incentive  distinguis hes solely 
on the basis of origin with regard to  ethanol and wood and wood -based products. In  light of the 
above -cited guidance from past cases , and noting the absence of any rebuttal by the United  States  
on this point, we find that the products at issue u nder Measure  4 are like for the purposes of 
Article  III:4 of the GATT  1994. 
7.3.2.4   Measure  5: Montana tax credit  
7.110.   As noted above339, the Montana tax credit for biodiesel blending and storage provides for 
"special fuel distributors" and "owners or operators of a motor fuel outlet" to receive a "credit against 
[certain] taxes … for the costs of investments in depreciable property used for storing or blending 
biodiesel with petroleum diesel for sale".340 This incentive is only available if the investment for which  
the credit is claimed is used primarily to blend petroleum diesel with biodiesel made entirely from 
Montana -produced feedstocks.341  
7.111.   India argues that the availability of the tax credit is "contingent on the use of biodiesel which 
is produced entirely from Mont ana-origin feedstock". Thus, in India's view, the measure creates a 
"distinction between the biodiesel and feedstock used to manufacture it … on the basis of the place 
of origin".342  
7.112.   The United States does not contest this aspect of India's claim under Arti cle III:4 of the 
GATT 1994.  
7.113.   As we understand it, there are potentially two sets of products that, according to India, are 
like for the purposes of analysing Measure  5: feedstock from which biodiesel is made, and biodiesel 
itself.343 
7.114.   Section  15-32-703(4)(a) o f the Montana Annotated Code (MCA) indicates that the tax 
incentives at issue are available only "for depreciable property used primarily to blend petroleum 
                                                
336 India's first written submission, par a. 336. 
337 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
338 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
339 See para.  2.24 above.  
340 Montan a Annotated Code, Section  15-32-703(1) (Exhibit US -11). 
341 Montana Annotated Code, Section  15-32-703(4)(a) (Exhibit US -11). 
342 India's first written submission, paras.  448 and 449.  
343 India's first written submission, para.  469. 
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  diesel with biodiesel made entirely from Montana -produced feedstocks".344 The measure does not 
make p rovision for incentives to be paid in respect of investments used to blend petroleum diesel 
with biodiesel made partly or wholly from non -Montana -produced feedstocks. However, the measure 
does not suggest, and the United  States  has not argued, that there i s any difference between 
Montana -origin and non -Montana origin feedstock as an input into biodiesel. Neither is there any 
suggestion on the record that biodiesel made from Montana -origin feedstock is in any way different 
from biodiesel made from non -Montan a-origin feedstock.  
7.115.   Accordingly, we find that, as India has argued, the Montana tax credit distinguishes solely 
on the basis of origin with regard to feedstock and biodiesel produced using feedstock. In light of 
the above -cited guidance from past cases , and noting the absence of any rebuttal by the 
United  States  on this point, we find that the products at issue under Measure  5 are like for the 
purposes of Article  III:4 of the GATT  1994.  
7.3.2.5   Measure  6: Montana tax refund  
7.116.   As explained  above345, the Montana tax refund provides that "licensed distributors" and 
"owners and operators of retail motor fuel outlets " may receive a tax refund on the sale of biodiesel 
"produced entirely from biodiesel ingredients produced in Montana".346 
7.117.   India submits that "the basis on whi ch the biodiesel is differentiated for the purposes of the 
tax refund is the place of origin of the raw material , i.e. biodiesel ingredients".347 In India's view, 
because "the only basis of distinction between the biodiesel as well as the ingredients used to  
manufacture it is on the basis of the place of production of the ingredients, the products, viz. 
biodiesel and the ingredients used to manufacture it" from Montana, on the one hand, and from 
outside Montana , on the other hand, are like for the purposes of  Article  III:4.348 
7.118.   The United  States  does not contest this aspect of India's claim  under Article III:4 of the 
GATT 1994 . 
7.119.   We recall that Sections 15 -70-433(1) and (2) of the Montana Annotated Code (MCA) both 
specify  that the relevant tax incentives are only a vailable "if the biodiesel is produced entirely from 
biodiesel ingredients produced in Montana".349 Under Measure  6, no incentive is available for 
biodiesel produced from ingredients made wholly or partly from ingredients produced outside 
Montana. The text of Measure  6 does not suggest, and the United  States  has not argued, that any 
qualitative difference exists between biodiesel produced from Montana -origin ingredients and 
biodiesel produced wholly or partly from ingredients originating outside Montana. Nor does the 
evidence indicate  that the ingredients themselves may have different qualities depending on whethe r 
they are produced in Montana or somewhere else.  
7.120.   Accordingly, we find that, as India has argued,  the Montana tax refund  distinguishes solely 
on the basis of origin with regard to biodiesel and biodiesel ingredients. In light of the above -cited 
guidance fr om past cases, and noting the absence of any rebuttal by the United  States  on this point, 
we find that the products at issue under Measure  6 are like for the purposes of Article  III:4 of the 
GATT  1994.  
7.3.2.6   Measure  7: Connecticut additional incentive  
7.121.   As noted  above350, the Connecticut additional incentive makes available " direct financial 
incentives, in the form of performance -based incentives or expected performance -based buydowns, 
for the purchase or lease of qualifying residential solar photovoltaic systems"  (solar PV systems) .351 
Importantly, additional incentives of up to 5% of the ordinarily available incentive may be provided  
                                                
344 Montana Annotated Code, Sect ion 15-32-703(4)(a) (Exhibit US -11). 
345 See paras.  2.29 and 2.30 above.  
346 Montana Annotated Code, Sections 15 -70-433(1) and 15 -70-433(2) (Exhibit IND -37). 
347 India's first written submission, para.  549 (emphasis  original).  
348 India's first written submission, para.  533. 
349 Montana Annotated Code, Sections 15 -70-433(1) and 15 -70-433(2) (Exhibit IND -37). 
350 See para. 2.32 above.  
351 General Statutes of Connecticut, Section  16-245ff(c) (Exhibi t IND -124).  
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  for the use of "major system components manufactured or assembled in Connecticut", and another 
additional incentive of up to 5% of the ordinarily available incentive may be provided  "for the use of 
major system components manufactured or assembled in a distressed municipality … or a targeted 
investment community".352 
7.122.   India argues that "major system components" "manufactured or assembled in Connecticut 
and those imported from outside Connecticut (including from the territory of other Members) are 
'like' within the meaning of Article  III:4 of the GATT".353 According to India, "in so far as the only 
basis of distinction between products made in Connecticut and outside the state of Connecticut is 
their origin, the products should be held to be 'like' for the purposes of Article  III:4 of the 
GATT  1994".354  
7.123.   The United  States  does not contest this aspect of India's claim  under Article III:4 of the 
GATT  1994. 
7.124.   We recall that Section  16-245ff(i) of the Connecticut General Statutes provides as follows:  
The Public Utilities Regulatory Authority shall provide an additi onal incentive of up to 
five per cent of the then -applicable incentive provided pursuant to this section for the 
use of major system components manufactured or assembled in Connecticut, and 
another additional incentive of up to five per cent of the then -applicable incentive 
provided pursuant to this section for the use of major system components manufactured 
or assembled in a distressed municipality [within Connecticut]…355 
7.125.   The term "major system component" is not defined in the text of Measure  7. In response to 
a question from the Panel, India argued that the term "may be understood as key/major components 
of a [ PV] system".356 The United  States  has not contested India's defini tion. We therefore accept 
that the products at issue under Measure  7 are the key or major components necessary to construct 
a PV system.  
7.126.   The text of Section  16-245ff(i) of the Connecticut General Statutes  provides that an 
additional incentive of up to 5 % will be made available in respect of PV systems containing major 
system components manufactured or assembled in Connecticut, whereas the same incentive will not 
be made available in respect of PV systems that do not contain such major system components. 
However, the text does not suggest, and the United  States  has not argued, that there is any 
qualitative difference between major system components manufactured in Connecticut and those 
manufactured outside of Connecticut.  
7.127.   Accordingly, we find that, as India h as argued,  the Connecticut additional incentive 
distinguishes between  key or major components of PV systems solely on the basis of origin, i.e. 
whether they are manufactured or assembled in Connecticut. In light of the above -cited guidance 
from past cases , and noting the absence of any rebuttal by the United  States  on this point, we find 
that the product s at issue under Measure  7 are like for the purposes of Article  III:4 of the 
GATT  1994.  
7.3.2.7   Measure  8: Michigan Equipment Multiplier / Michigan Labour Multiplier  
7.128.   As explained  above357, the Renewable Energy Standards Program in the State of Michigan  
(RESPM ) requires electric providers to achieve a "renewable energy credit portfolio"358 by either 
generating or purchasing electricity produced using renewable energy systems.359 One renewable 
energy credit  (REC)  is credited for each megawatt hour of electricity.360 However, an additional 1/10 
                                                
352 General Statutes of Connecticut, Section  16-245ff(i) (Exhibit IND -124).  
353 India's first written submission, para.  660. 
354 India's first written submission, para.  666. 
355 General Statutes of Connecticut, Section  16-245ff(i) (Exhibit IND -124).  
356 India's response to Panel question No. 38.  
357 See para. 2.40 above.  
358 Michigan Public Act No. 342, Section  28(1) (Exhibit IND -44). 
359 Michigan Public Act No. 342, Section  28(3) (Exhibit IND -44). 
360 Michigan Public Act No. 342, Section  39(1) (Exhibit IND -44). 
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  credit is awarded for every kilowatt hour produced using a renewable energy system that was either 
(i) constructed using equipment made in Michigan361 (the Michigan Equipment Mu ltiplier); or ( ii) 
constructed using a workforce composed of residents of Michigan (the Michigan Labour Multiplier).362 
7.129.   India argues that "renewable energy systems constructed using the equipment made in 
Michigan or using the workforce composed of the Michig an residents … and [renewable energy 
systems] imported from outside the United  States  are 'like' within the meaning of Article  III:4 of the 
GATT  1994".363 More specifically, India submits that "the only distinguishing criteria for obtaining 
the additional in centives granted through the Michigan Equipment Multiplier is whether or not the 
equipment used in the 'renewable energy system' or as 'renewable energy system' as the final 
product [ sic] are manufactured in Michigan".364 Similarly, India argues that the "on ly distinguishing 
criteria for obtaining the additional incentives granted through the Michigan Labour Multiplier is 
whether or not the renewable energy system has been constructed using workforce composed of 
the Michigan -residents [ sic]", and is therefore  "based on the in -state manufacture level".365 
India concludes that "both … multipliers … make a distinction based on origin", and therefore 
renewable energy systems entitled to receive the additional credits are like renewable energy 
systems that are not en titled to receive the additional credits for the purposes of Article  III:4 of the 
GATT  1994.366  
7.130.   The United  States  does not contest this aspect of India's claim  under Article  III:4 of the 
GATT  1994. 
7.131.   Section  39(2)(d) of Michigan Public Act No. 342 provides that an additional 1/10 credit is 
granted for each megawatt hour of electricity generated from a renewable energy system 
constructed using equipment made in Michigan.367 Similarly, Section  39(2)(e) of the same Act 
provides that an additional 1/10 cr edit will be awarded for each megawatt hour of electricity from a 
renewable energy system constructed using a workforce composed of residents of Michigan.368 These 
provisions make clear that energy produced from renewable energy systems not constructed using  
Michigan -made equipment or not constructed by a workforce composed of Michigan residents does 
not receive an additional 1/10 REC per megawatt hour. Notably, the text of Measure  8 does not 
suggest, and the United  States  has not argued, that there is any qu alitative difference in renewable 
energy systems depending on whether they are made from Michigan -sourced equipment or 
constructed by a workforce composed of Michigan residents.  
7.132.   Accordingly, we find that, as India has argued,  the Michigan Equipment Multipl ier and the 
Michigan Labour Multiplier distinguish between renewable energy systems solely on the basis of 
origin. In light of the above -cited guidance from past cases,  and noting the absence of any rebuttal 
by the United  States  on this point,  we find that  the products at issue under Measure  8 are like for 
the purposes of Article  III:4 of the GATT  1994. 
7.3.2.8   Measure  9: Delaware Equipment Bonus / Delaware Workforce Bonus  
7.133.   As noted  above369, the Delaware Renewable Energy Portfolio Standards Act  (REPSA ) provides 
retail electricity suppliers with an additional 10% credit toward meeting the renewable energy 
portfolio standards for solar or wind energy installations, provided that a minimum of 50% of the 
cost of renewable energy equipment, inclusive of moun ting components, are manufactured in 
Delaware (the Delaware Equipment Bonus), or that the facility is constructed or installed with a 
minimum of 75% in -state workforce (the Delaware Workforce Bonus).  
7.134.   India has identified "renewable energy equipment", inclu ding "mounting components" as the 
products at issue under the Delaware Equipment Bonus.370 India argues that "[t]he text of the 
                                                
361 Michigan Public Act No. 342, Section  39(2)(d) (Exhibit IND -44).  
362 Michigan Public Act No. 342, Section  39(2)(e) (Exhibit IND -44).  
363 India's first written submission, para.  757. 
364 India's first written submission, para. 761.  
365 India's first written submission, para.  761. 
366 India's first written submission, para.  761. 
367 Michigan Public Act No. 3 42, Section  39(2)(d) (Exhibit IND -44).  
368 Michigan Public Act No. 342, Section  39(2)(e) (Exhibit IND -44).  
369 See para. 2.52 above.  
370 India's first written submissi on, paras.  854 and 862.  
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  measure in the REPSA indicates that the determinant of the challenged additional incentive is based 
upon either the percentage of total cost of renewable energy equipment and mounting component 
that should be manufactured in Delaware or upon the percentage of in -state workforce used in the 
construction and/ or installation of the facility."371 
7.135.   The United  States  has not contested this a spect of India's claim under Article  III:4 of the 
GATT  1994.  
7.136.   We note that the relevant legal instruments support India's argument . Notably, none of the 
exhibits on the record define the terms  "renewable energy equipment" or "mounting components" , 
as used in the Delaware Equipment Bonus and the Delaware Workforce Bonus. We agree with  India 
that "the[se] terms can be understood to mean any solar or wind renewable energy equipment, 
including its parts used for generating energy which would qualify for meeting  renewable energy 
portfolio standard".372 
7.137.   We also note that Section  356(d) of the Delaware Code provides that an additional 10% 
credit is granted for solar or wind energy installations sited in Delaware provided that a minimum of 
50% of the cost of renewable  energy equipment, inclusive of mounting components, are 
manufactured in Delaware.373 Similarly, Section  356(e) of the same Code provides that an additional 
10% credit is granted for solar or wind energy installations sited in Delaware provided that the 
facility is constructed or installed with a minimum of 75% workforce from Delaware.374 These 
provisions make clear that energy produced from renewable energy equipment not manufactured 
using Delaware -made equipment , or facilities not constructed by a workforce composed of Delaware 
residents does not receive an additional  10% credit. Notably, the text of the provi sion does not 
suggest, and the United  States  has not argued, that there is any qualitative difference in renewable 
equipment or facilities depending either on whether they are made from Delaware -sourced 
equipment or whether they are constructed by a workfo rce composed of Delaware residents.  
7.138.   Accordingly, we find that, as India has argued,  the Delaware Equipment Bonus and the 
Delaware Workforce Bonus distinguish solely on the basis of origin with regard to  renewable energy 
systems and facilities. In light of the above -cited guidance from past cases,  and noting the absence 
of any rebuttal by the United  States  on this point, we find that the products at issue under Measure  9 
are like for the purposes of Article  III:4 of the GATT  1994.  
7.3.2.9   Measure  10: Minnesota prod uction incentives and rebates  
7.139.   As noted above375, we will only examine two of the three program s identified by India under 
Measure  10, i.e. the Minnesota s olar energy production incentive program  on the installation of solar 
photovoltaic (PV) modules  (SEPI) , and the Minnesota solar photovoltaic ( PV) rebate.  
7.140.   As explained  above376, these two program s grant financial incentives and rebates for the use 
of solar PV modules made in Minnesota.  
7.141.   India has id entified solar PV modules as the relevant products under  these two program s 
under Measure  10.377 India argues that "the only basis on which the solar PV modules … 
manufactured within and outside Minnesota are differentiated is the place of origin" .378 
                                                
371 India's first written submission, para.  855. 
372 India's first written submission, para.  857. 
373 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  356(d) (Exhibit IND -54). In order to 
explain how the percentage of Delawar e manufactured component is calculated, India submitted the 
application that must be filed to claim for additional credits.373 Among the documents to be filed, there are the 
suppliers' invoices showing Delaware manufactured equipment with the facility identi fied. In certain cases, the 
address where the materials were used/installed as well as the quantity of material used, must also be 
supplied. See Application for Certification, p.  3 (Exhibit IND -127).  
374 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  356(e) (Exhibit IND -54). 
375 See para. 7.85 above.  
376 See para. 2.55 above.  
377 India's first written submission, para.  996.  
378 India's first written submission, para.  996. 
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  7.142.   The United States  has not contested this aspect of India's claim under Article  III:4 of the 
GATT  1994. 
7.143.   Under the SEPI, solar PV modules must have received a 'Made in Minnesota' certificate under 
Section  216C.413 of the 2016 Minnesota Statutes.379 As noted above380, to receive this certificate, 
solar PV modules must meet requirements relating to the location of the manufacturing facility in 
Minnesota, among others. Thus, imported solar PV modules cannot qualify for the "Made in 
Minnesota" certificate that gives access to the SEPI.  
7.144.   Under the Minnesota solar PV rebate, solar PV modules must be manufactured in 
Minne sota.381 Section  116C.7791 of the 2016 Minnesota Statutes links the manufacturing process 
to Minnesota by requiring that the manufacturer of the solar PV modules operate in this State. 
Consequently, imported solar PV modules cannot qualify for the rebate und er this program . 
7.145.   Accordingly, we find that, as India has argued,  the SEPI and the Minnesota solar PV rebate 
distinguish between solar PV modules  solely on the basis of origin . In light of the above -cited 
guidance from past cases,  and noting the absence of any rebuttal by the United  States  on this point, 
we find that the products at issue under the SEPI and the  Minnesota  solar PV rebate under 
Measure  10 are like for the purposes of Article  III:4 of the GATT  1994.  
7.3.2.10   Conclusion on likeness   
7.146.   We find that, in the context of each of the measures at issue, the relevant imported and 
domestic products are like products within the meaning of Article  III:4 of the GATT  1994.  
7.3.3   "Laws, regulations and requirements affecting the[] internal sale, offering f or sale, 
purchase, transportation, distribution, or use" of relevant products  
7.147.   The second element of the legal test under Article  III:4 of the GATT  1994 raises two 
questions: (i) whether the measures are covered by the phrase "laws, regulations and 
requirem ents"; and, if so, (ii) whether  they "affect the[] internal sale, offering for sale, purchase, 
transportation, distribution or use" of the products at issue. We examine these two issues  in turn.  
7.3.3.1   "Laws, regulations and requirements"  
7.148.   India argues that each of the measures at issue falls within the scope of the phrase "laws, 
regulations and requirements" in Article  III:4 of the GATT  1994.382 Recalling the statement by the 
panel in Japan – Film that "panels have taken a broad view of when a governmental measure is a 
law, regulation or requirement"383, India submits that this phrase should be given a 
"broad  interpretation".384 India adds that "for a governmental policy or action to fall within the scope 
of 'laws, regulations and requirement s', it need not necessarily have a substantially binding or 
compulsory nature".385 Further, India recalls that the panel in India – Autos  explained that 
GATT  panel reports suggest two distinct situations that would satisfy the term "requirement" in 
Article  III:4: (i) obligations which an enterprise is "legally bound to carry out"; and (ii) those that 
an enterprise voluntarily accepts to obtain an advantage from the government.386  
                                                
379 2016 Minnesota Statutes, Section  216C.411 through 216C.415 (Exhibit IND -66). 
380 See para. 2.58 above.  
381 2016 Minnesota Statutes, Section  216C.7791 (Exhibit IND -66). 
382 India's first written submission, paras.  42-47, 163 -168, 358 -365, 455 -460, 555 -562, 668 -672, 
768-774, 864 -872, and 1003 -1010.  
383 Panel Report, Japan – Film, para.  10.51.  
384 India's first written submission, paras.  44, 165, 360, 458, 557, 670, 770, 866, an d 1005.  
385 India's first written submission, paras.  44, 165, 360, 458, 557, 670, 770, 866, and 1005.   
386 India's first written submission, paras.  45, 166, 361, 459, 558, 671, 771, 867, 1006 and 1114 
(referring to Panel Report, India – Autos , para. 7.184).  
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  7.149.   The United  States  does not contest either India's articulation of the applicable legal standard 
or its assertion that the measures at issue constitute "laws, regulations and requirements".387 
7.150.   Leaving aside the original versions of Measures 1 and 8  and the repealed solar thermal 
rebate program under Measure 10 , on which we have decided no t to make findings388, India has 
identified the following legal instruments in respect of each of the measures at issue:  
No. Name  Relevant legal instruments  
1 Washington State 
additional incentive  - Revised Code of Washington, Renewable Energy System 
Cost Rec overy, RCW 82.16.110 through 82.16.130; and  
- Washington Administrative Code, Renewable Energy 
System Cost Recovery, WAC 458 -20-273 
2 California Manufacturer 
Adder  - California Public Utilities Code, Sections 379.6; and  
- Self Generation Incentive Program Handbooks, 2016 and 
2017 
4 Montana tax incentive  - Montana Annotated Code, Sections 15 -70-501 to 15 -70-
527 
- Administrative Rules of Montana, Sections  18.15.701 – 
18.15.703 and 18.15.710 – 18.15 -712 
5 Montana tax credit  - Montana Annotated Code, Section  15-32-703 
6 Montana tax refund  - Montana Annotated Code, Section  15-70-433 
7 Connecticut additional 
incentive  - General Statutes of Connecticut, Section  16-245ff 
- Request for Qualification for Eligible Contractors and Third 
Party PV System Owners  
8 Michigan Equipment 
Multiplier / Michigan 
Labour Multiplier  - Michigan Public Act, No. 342  
9 Delaware Equipment 
Multiplier / Delaware 
Labour Multiplier  - Renewable Energy Portfolio Standards Act, 2005 as 
incorporated in Delaware Code, Sections  356(d) and (e) 
389; and  
- Rules and Procedure to Implement the Renewable Energy 
Portfolio Standard  
10 Minnesota solar energy 
production incentive 
(SEPI) - Minnesota Statut e (2016), Sections 216C.411 through 
216C.415  
Minnesota solar 
photovoltaic ( PV) 
rebate  - Minnesota Statute (2016), Section  116C.7791  
 
7.151.   We note that past cases have consistently held that the scope of the phrase "laws, 
regulations and requirements" in Article  III:4 of the GATT  1994 is broad.390 The panel in Japan – 
Film considered that the phrase "laws, regulations and requirements" "should be interpreted as  
encompassing a … broad range of government action and action by private parties that may be 
assimilated to government action".391 More specifically, the panel in India – Solar Cells  noted,  in the 
context of Article  XX(d) of the GATT  1994, that "dictionary definitions make clear that 'laws' and 
'regulations' refer to 'rules'".392 More recently, the panel in Brazil – Taxation  confirmed that the term 
"laws, regulations and requirements" "encompasses a variety of governmental measures, from 
mandatory r ules which apply across the board, to government action that merely creates incentives 
                                                
387 There is no mention of this element of the legal standard in either of the two written submissions of 
the United  States or in its opening and closing statements at the first and second meetings of the Panel.  
388 See paras.  7.52 and 7.76 above.  
389 Subchapter III -A in Chapter 1 of Title 26 of the Delaware Code governi ng the renewable energy 
portfolio Standards is known as the "Renewable Energy Portfolio Standards Act". See Delaware Code, Title  26, 
Chapter 1, Subchapter III -A (Exhibit IND -54). 
390 See e.g. Panel Report, Japan – Film, para. 10.376.  
391 Panel Report, Japan – Film, para.  10.376.  
392 Panel Report, India – Solar Cells , paras.  7.307 -7.308 (fns  omitted). The  panel in that case referred to 
the Appellate Body statement in Mexico – Taxes on Soft Drinks  that "the terms 'laws or regulations' refer to rules 
that form part of the domestic legal system of a WTO Member". See Appellate  Body Report, Mexico – Taxes on 
Soft Drinks , para.  7.69. 
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  or disincentives for otherwise voluntary action by private persons".393 Notably, the term 
"requirement" has repeatedly been found to cover not just "mandatory measures but  also [] 
conditions that an enterprise accepts in order to receive an advantage".394 
7.152.   All the measures identified by India and enumerated in the above table are embodied, wholly 
or at least partly, in formal legal instruments  such as codes, rules, acts and statutes. These 
instruments clearly qualify as "laws" or "regulations" resulting from "governmental  action"395 and 
setting out rules with which compliance is necessary to obtain an advantage from a government.  
7.153.   In respect of Measure  2, India has also identified handbooks that develop and clarify certain 
rules and procedures set out in the related legislative instruments.396 We consider that these 
documents may come within the broad definition of "regulation", understood as "[a] r ule or principle 
governing behavior or practice; esp. such a directive established and maintained by an authority"397, 
given that they essentially develop particular aspects of the California Manufacturer Adder as 
established in legislative acts, codes or st atutes. In any case, we are of the view that these 
instruments qualify at least as "requirements" within the meaning of Article  III:4, because they set 
out the conditions and procedures that need to be followed to benefit from the relevant advantages, 
and they are issued by public authorities responsible for administering the se program s. In this 
regard, we recall the guidance by the panel in India – Autos  referenced by India398 that 
"GATT  jurisprudence … suggests two distinct situations which would satisfy the term 'requirement' 
in Article  III:4: (i) obligations which an enterprise is 'legally bound to carry out'; [and] (ii) those 
which an enterprise voluntarily accepts in order to obtain an advantage from the government".399 
7.154.   Thus, we find that e ach of the measures at issue fall s within the scope of the phrase "laws, 
regulations and requirements" as used in Article  III:4 of the GATT  1994.  
7.3.3.2   "Affecting the[] internal sale, offering for sale, purchase, transportation, 
distribution or use " of relevant  products  
7.155.   India submits that each of  the measures at issue affect s the sale, purchase, transportation, 
distribution or use  of the imported like products because they "adversely modify the conditions of 
competition " between domestic and imported products by providing "incentives" or 
"higher  incentives" based on domestic input.400 
7.156.   The United  States  submits that India has not met its burden of proof to show that each of 
the measures at issue "affect[s] the[] internal sal e, offering for sale, purchase, transportation, 
distribution or use " of the relevant products . According to the United  States , India, having alleged 
that the measures have "incentivizing" effects, was required, but failed, to demonstrate that the 
measures at issue  incentivize the use of domestic over imported products.401 
7.157.   We recall the Appellate  Body's statement that the word "affecting" has a broad scope of 
application, "wider in scope than such terms as 'regulating' or 'governing'".402 According to the 
                                                
393 Panel Reports, Brazil – Taxation , para.  7.65 (referring to Panel Report, China – Publications and 
Audiovisual Products , para.  7.1512).  
394 Panel Report, Canada – Autos , para.  10.73. See also Panel Report, India – Autos , paras.  7.188 -
7.193.  
395 Panel Report, Japan – Film, para.  10.51  
396 2016 SGIP Handbook (Exhibit IND -16) and 2017 SGIP Handbook (Exhibit IND -15) in the context of 
Measure  2; and Connecticut Green Bank, Request for Qualification and Program Guidelines, Residential Solar 
Investment Program ( Exhibit  IND-42) in respect of Measure  7. 
397 Oxford English Dictionary, definition of "regulation" 
http://www.oed.com/view/Entry/161427?redirectedFrom=regulation#eid  (accessed 12 February 2019).  
398 India's first written submission, paras.  45, 166, 361, 459, 558, 671, 771, 867, 1006 and 1114 
(referring to Panel Report, India – Autos , para.  7.184).  
399 Panel Report, India – Autos , para.  7.184. See also ibid., paras. 7 .185-7.186.  
400 India's first written submission, paras.  50, 171, 273, 365, 463, 562, 675, 777, 871, 1010 and 1118.  
401 United States' first written submission, paras.  79 and 84.  
402 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 209, quoting Appellate Body Report, EC – 
Bananas III , para.  220. With respect to the broad scope of application of Article III:4, the Appellate Body has 
recently clarified in a report issued on 13 December 2018 that "while Article III:8(a) precludes the application of 
the national treatment obligation in Ar ticle III to government procurement activities falling within its scope, 
Article III:8(b) provides a justification for measures that would otherwise be inconsistent with the national 
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  Appel late Body, "[t]he ordinary meaning of the word 'affecting' implies a measure that has 'an effect 
on', which indicates a broad scope of application".403 Past panels have clarified that "the word 
'affecting' in Article  III:4 of the GATT … cover[s] not only law s and regulations which directly govern 
the conditions of sale or purchase but also any laws or regulations which might adversely modify the 
conditions of competition between domestic and imported products"404, as well as "measures which 
create incentives or  disincentives with respect to the sale, offering for sale, purchase, and use of an 
imported product".405 
7.158.   In this connection, we recall that in Canada – Autos , the panel concluded that where a 
challenged measure confers an advantage on the use of a domestic product but not on the use of a 
like imported product, it can clearly be characterized as affecting the internal sale or use of those 
products, because it necessarily has an impact on the conditions of competition:  
[A] measure which provides that an advant age can be obtained by using domestic 
products but not by using imported products has an impact on the conditions of 
competition between domestic and imported products and thus affects the "internal 
sale, … or use" of imported products.406 
7.159.   The same panel  emphasized that a measure may affect the sale, purchase, transportation, 
distribution or use of products independently of its impact "under current circumstances"407:  
The idea that a measure which distinguishes between imported and domestic products 
can be con sidered to affect the internal sale or use of imported products only if such a 
measure is shown to have an impact under current circumstances on decisions of private 
firms with respect to the sourcing of products is difficult to reconcile with the concept 
of the "no less favourable treatment" obligation in Article  III:4 as an obligation 
addressed to governments to ensure effective equality of competitive opportunities 
between domestic and imported products, and with the principle that a showing of trade 
effects is not necessary to establish a violation of this obligation.408 
7.160.   The panel in Canada – Autos  thus rejected the respondent's argument that the measure at 
issue did not affect  the sale, purchase, transportation, distribution or use of the relevant products 
because the domestic content requirements it established were very "low".409 To the contrary, 
the panel found it sufficient to observe that the measure had "an effect on the competi tive 
relationship between imported and domestic products by conferring an advantage upon the use of 
domestic products while denying that advantage if imported products are used".410 On this basis, 
the panel held that the case before it "clearly involve [d] formally different treatment of imported 
and domestic products albeit that the actual trade effects of this different treatment may be minimal 
under current circumstances"411, and concluded that there was no "need to examine how important 
the [measure at issue  was] under present circumstances as a factor influencing the decisions of" 
motor vehicle manufacturers whether to use domestic or imported parts in order to conclude that 
the measures affected the sale, purchase, transportation, distribution or use of the  relevant 
products.412  
7.161.   In light of the above, we  consider that, in assessing whether a challenged measure affects 
the sale, purchase, transportation, distribution or use of goods in a market, a panel should examine 
                                                
treatment obligation in Article III". In the present dispute, the United  States has not submitted arguments with 
respect to Article III:8 of the GATT  1994 nor raised any defence under the general exceptions of Article XX of 
the GATT  1994. See Appellate Body Reports, Brazil – Taxation , para.  5.84. 
403 Appellate Body Report, EC – Bananas III , para.  220. 
404 Panel Reports, Canada – Autos , para.  10.80 and China – Auto Parts , para.  7.251. This line of 
reasoning dates back to the GATT era: see GATT Panel Report, Italy – Agricultural Machinery , para.  12. 
405 Panel Report, China – Publications and Audiovisual Products , para.  7.1450 (referring to Panel 
Reports, EC – Bananas III , para. 7.175; India – Autos , paras. 7.196 -7.197; and Canada – Wheat Exports and 
Grain Imports , para. 6.267).  
406 Panel Report, Canada – Autos , para.  10.82. See also ibid., para. 10.83.  
407 Panel Report, Canada – Autos , para.  10.84. See also ibid., para. 10.83.  
408 Panel Report, Canada – Autos , para.  10.84. See also ibid., para. 10.83.  
409 Panel Report, Canada – Autos , para.  10.83.  
410 Panel Report, Canada – Autos , para.  10.83.  
411 Panel Report, Canada – Autos , para.  10.84.  
412 Panel Report, Canada – Autos , para.  10.83.  WT/DS510/R  
 
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  whether such measure has an impact on the conditions of competition between domestic and 
imported like products, but need not examine whether or the extent to which the measure has, 
under current circumstances, influenced purchasing decisions on the market. Moreover, we consider 
that positive evid ence that a measure may have had only minimal impact on the purchasing decisions 
of private firms will not be sufficient to rebut a prima facie  showing that a measure affects the 
competitive relationship between imported and domestic products because, for example, it confers 
an advantage upon the use of domestic products while denying that advantage if imported products 
are used.  
7.162.   Bearing these observations in mind, we now turn to examine whether each of the measures 
at issue affects the sale, purchase, tran sportation, distribution or use of relevant products.  
7.3.3.2.1   Measure  1: Washington State additional incentive  
7.163.   India argues that the Washington State additional incentive under the Washington 
Renewable Energy Cost Recovery Incentive Payment Program ( RECIP ) "provid e[s] higher incentives 
(i.e. an advantage) based on domestically procured specified components".413 On this basis, India 
concludes that the measure at issue "adversely modif[ies] the conditions of competition between 
domestic and imported 'like products' and  therefore 'affect[s]'" those products.414 
7.164.   The United  States  responds that "India has provided no evidence that substantiates its 
assertion that 'the measures at issue' create a demand for equipment [manufactured in Washington  
State ] and insulate them from c ompeting 'like products' outside of Washington".415 In the 
United  States ' view, India also has not demonstrated that the Washington State additional incentive 
modifies the conditions of competition "in Washington's market for renewable energy products 'to 
the determinant [sic] of imported products.'"416 In particular, the United  States  argues that  the 
figures relied upon by India that show a growth in the number of solar photovoltaic ( PV) systems 
installed in Washington State between 2005 – when RECIP began – and 2015417 do not support its 
assertion that the Washington State additional incentive has induced the wide -scale adoption of 
Washington -made renewable energy products in Washington  State . The United  States  argues that 
the figure submitted by India does not indicate the percentage of installed systems – if any – 
containing components manufacture d in Washington  State .418 Absent this information, the 
United  States  considers that India has failed to demonstrate that the Washington State additional 
incentive "ha[s] incentivized or 'affected' the 'use' of Washington -made solar PV systems or 
components i n particular".419 The United  States  adds that, out of the approximately USD 17 million 
in cost recovery incentive payments through 2015 funded by Washington  State  according to India, 
nothing indicates the proportion thereof associated with the use of Washing ton-made renewable 
energy equipment or components.420 Finally, according to the United  States , "[b]ecause 
incentivization  is the vector by which India claims"421 that the Washington State additional incentive 
affects the use of products, India "has necessarily  failed to establish that the measure[] 'affect'[s] 
the 'use' of products with the meaning of" Article  III:4.422 
7.165.   As explained above423, the Washington State additional incentive is provided for customer -
generated electricity produced using solar inverters, sol ar modules, stirling converters, or wind 
blades manufactured in Washington  State . The measure does not prohibit the use of  non-local, 
including  imported solar inverters, solar modules, stirling converters, and wind blades. However, in 
such cases, no additi onal incentives based on the highest economic development factors on top of 
the base incentive rates  are available .  
7.166.   In our view, India's demonstration that the Washington State additional incentive accords 
an advantage on the use of local products (i.e.  solar inverters, solar modules, stirling converters, or 
                                                
413 India's first written submission, para.  50. 
414 India's first written submission, para.  50. 
415 United  States' first written submission, para.  85 (emphasis  original).  
416 United  States' first written submission, para.  85. 
417 India's first written submiss ion, para.  24, Figure 2.  
418 United  States' first written submission, para.  87. 
419 United  States' first written submission, para.  87. 
420 United  States' first written submission, para.  87. 
421 United  States' first written submission, para.  88 (emphasis  original).  
422 United  States' first written submission, para.  88. 
423 See para. 2.8 above.  WT/DS510/R  
 
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  wind blades manufactured in Washington  State ) that is not avai lable for the use of relevant  like non-
local products, including imported products, is sufficient to make a prima facie case that the 
Washington State additional incentive affec ts the sale, purchase, transportation, distribution or use 
of the relevant prod ucts. 
7.167.   With respect to the United  States ' argument that the figures provided by India do not support 
its assertion, we agree with the United  States  that nothing in the relevant graph shows that the 
exponential growth of solar PV systems in Washington  State  between 2005 and 2015 is due, or 
somehow related, to the provision of the Washington State additional incentive. As pointed out by 
the United  States , the graph in question does not contain information on the percentage of systems 
containing components manu factured in Washington  State , or the type or percentage of components 
made in Washington  State . 
7.168.   Further, the fact that, as of 23 September 2015, US D 17,023,303 from the Washington State 
budget had been spent on investment cost recovery incentive payments f or electricity generated 
through certified renewable systems does not shed any light on the relationship, if any, between 
this amount and the Washington State additional incentive. There is no  information on the record 
explain ing what percentage of these i ncentive payments corresponds to customer -generated 
electricity produced using solar inverters, solar modules, stirling converters, or wind blades 
manufactured in of Washington  State . Therefore, we are unpersuaded by India's assertions in this 
respect.  
7.169.   Nevertheless , we do not consider that these factual arguments by the United  States  are 
capable of rebutting India's prima facie  showing that the measure affects the sale, purchase, 
transportation, distribution or use  of the relevant products. This is because,  as explained above, the 
relevant question at this point of our analysis is whether the measure has an impact on the conditions 
of competition between domestic and imported like products, not whether or the extent to which it 
has or is actually influencing  the purchasing decisions of private firms "under current circumstances". 
In our view, the Washington State additional incentive "involves formally different treatment of 
imported and domestic products albeit that the actual trade effects of this different  treatment may 
be minimal under current circumstances".424 Thus, in assessing whether the measure affects the 
sale, purchase, transportation, distribution or use of the relevant products, the question whether 
any person or enterprise has actually decided to take up that advantage is, in our view, beside the 
point.  
7.170.   We therefore find that India has shown prima facie , and the United  States  has not rebutted, 
that the Washington State additional incentive "affect[s] the internal sale, offering for sale,  purchase, 
transportation, distribution or use" of products within the meaning of Article  III:4 of the GATT  1994. 
7.3.3.2.2   Measure  2: California Manufacturer Adder  
7.171.   India argues that the California Manufacturer Adder under the California Self -Generation 
Incentive Pr ogram ( SGIP) "provide[s] incentives (i.e., an advantage) based on whether the eligible 
equipment satisfy the requirements of the [program] i.e. whether they are manufactured in 
California or meet the in -state manufacturing level".425 On this basis, India con cludes that Measure  2 
"adversely modif[ies] the conditions of competition between the domestic and imported 'like 
products' and therefore 'affect[s]'" those products.426 
7.172.   The United  States  responds that "India has provided no evidence that substantiates its 
assertion that the SGIP Adder operates to 'induce[]' buyers to 'purchase specified products of 
California -origin.'"427 Moreover, according to the United  States , India has also failed to demonstrate 
that the California Manufacturer Adder modifies the condition s of competition "in the market for 
renewable energy equipment in California 'to the determinant [sic] of imported products' ."428 
The United  States  points out that India has not indicated the number of individuals who have been 
                                                
424 Panel Report, Canada – Autos , para.  10.84.  
425 India's first written submission, para.  171. 
426 India's first written submission, para.  171. 
427 United  States' first written submission, para.  90 (referring to India's first written submission, 
para. 176) (emphasis  original).  
428 United  States' first written submission, para.  90. 
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  granted incentives under this program .429 In the United  States ' view, "[b]ecause  incentivization  is 
the vector by which India claims"430 that the California Manufacturer Adder affects the use of 
products, India "has necessarily failed to establish that the SGIP Adder 'affect[s]' the 'use' of 
products with the meaning of" Article  III:4.431 
7.173.   As explained above432, the California Manufacturer Adder consists of an additional 20% 
incentive payment for the installation of eligible distributed generation resources "from a California  
Supplier" (under the 2016 SGIP Handbook) or generation and energy storage equipment 
"manufactured in California" (under the 2017 SGIP Handbook). We further noted that imported 
products cannot receive this additional incentive because they are not sourced  from a California 
Supplier  or manufactured in California. Although Measure  2 does not prohibit  the installation of 
imported eligible distributed generation resources, in such cases, the additional 20% incentive 
payment provided under  the California Manufacturer Adder  is not available .  
7.174.   In our view, India's demonstration that the California Ma nufacturer Adder accords an 
advantage on the use of local products (i.e. eligible distributed generation resources under the 2016 
SGIP Handbook, and generation and energy storage equipment under the 2017 SGIP Handbook ) 
that is not available for the use of non-local products, including imported products is sufficient to 
make a prima facie case that the California Manufacturer Adder affects the sale, purchase, 
transportation, distribution or use of the relevant products.  
7.175.   We do not agree with the United  States ' argument that India should have demonstrated that 
the California Manufacturer Adder has  had the effect of "inducing" buyers to "purchase" the eligible 
products of California -origin. As mentioned above433, we are of the view that India is not required to 
show that the measure at issue in fact has or had an impact on the relevant buyers, as suggested 
by the United  States . Neither is India required under Article  III:4 of the GATT  1994 to indicate the 
number of those who  have been granted incentives under this program . As explained above, the 
relevant question at this point of our analysis is whether the measure has an impact on the conditions 
of competition between domestic and imported like products, not whe ther or the extent to which it 
has or is actually influencing the purchasing decisions of private firms "under current circumstances". 
We consider that for India to make a prima facie  case it suffices to show that the California 
Manufacturer Adder confers an advantage on the use of local products that it does not confer on the 
use of imported products.  
7.176.   For these reasons, we conclude that India has made a prima facie  case, and the 
United  States  has not rebutted, that the California Manufacturer Adder "affect [s] the internal sale, 
offering for sale, purchase, transportation, distribution or use" of products within the meaning of 
Article  III:4 of the GATT  1994. 
7.3.3.2.3   Measure  4: Montana tax incentive  
7.177.   According to India, the Montana tax incentive "provide[s] tax incen tives (i.e. an advantage) 
based on the in -state manufacture level of ethanol, i.e. the higher the content of Montana 
agricultural products in the ethanol so produced, the higher is the tax incentive".434 On this basis, 
India concludes that the measure at iss ue "adversely modif[ies] the conditions of competition 
between the domestic and imported 'like products' and therefore 'affect [s]'" those products.435 
7.178.   The United  States  responds that "Montana Department of Transportation records indicate 
that no entity has a vailed [itself] of [the measure] since 1995".436 According to the United  States , 
this "contradicts India's assertion that [the measure] ha[s] incentivized the use of products of 
Montana -origin". Further, in the United  States ' view, because incentivization "i s the vector by which 
                                                
429 United  States' f irst written submission, para.  90. 
430 United  States' first written submission, para.  92 (emphasis  original).  
431 United  States' first written submission, para.  92. 
432 See para. 2.14 above.  
433 See para. 7.169  above.  
434 India's first written submission, para.  365. 
435 India's first written  submission, para.  365. 
436 United  States' first written submission, paras.  15 and 99 (emphasis  original).  
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  India claims" that the measure at issue affects products, India has "necessarily failed to establish 
that [the measure] has 'affect[ed]' the 'use' of products within the meaning of" Article  III:4.437 
7.179.   As explained above438, the Montana tax incentive for ethanol production makes available tax 
incentives for ethanol production from Montana -origin ingredients. Although Measure  4 does not 
prohibit ethanol  production from ingredients sourced outside Montana, such ethanol is not eligible 
to receive the tax incentive.439  
7.180.   In our view, India's demonstration that the Montana tax incentive confers an advantage on 
the use of domestic products (i.e. Montana -origin ingredients) that is not available for the use of 
imported products, is suf ficient to make a prima facie  case that the Montana tax incentive affects 
the sale, purchase, transportation, distribution  or use  of the relevant products.  
7.181.   We are cognizant that ethanol made from non -Montana ingredients may be eligible to receive 
the tax incentive if Montana ingredients are "not available".440 We do not, however , consider that 
this exception undermines or contradicts India's submission that, by conferring a benefit on the use 
of local products  – where such are available in the market  – that is not available for the use of 
imported products, the measure at issue has an impact on the conditions of competition  and 
therefore affects the sale, purchase, transportation, distribution or use of  the products within the 
meaning of Article  III:4. We not e, moreover, that the United  States  has not suggested that this 
exception would in itself have any bearing on the question whether the measure affects the sale, 
purchase, transportation, distribution or use of the relevant products.  
7.182.   Turning to the United  States' argument that Montana Department of Transportation records 
show that no entity has claimed an incentive under the measure at issue since 1995, we note that 
India has not contested this assertion. Moreover, the Montana Department of Transportation Re cords 
file submitted by the United  States  in support of its position does appear to show payments only 
between 1992 and 1995, although it is not entirely clear to us whether the information reflected in 
this exhibit is comprehensive.441  
7.183.   However,  even if  the United  States ' argument were factually correct, we do not consider that 
it would be capable of rebutting India's prima facie  showing that the measure affects the sale, 
purchase, transportation, distribution or use of the relevant products. This is because , as explained 
above, the relevant question at this point of our analysis is whether the measure has an impact  on 
the conditions of competition between domestic and imported like products, not whether or the 
extent to which it has or is actually influencing the purchasing decisions of private firms "under 
current circumstances". In our view, the Montana tax incentive  "involves formally different treatment 
of imported and domestic products albeit that the actual trade effects of this different treatment 
may be minimal under current circumstances".442 Thus, in assessing whether the measure affects 
the sale, purchase, tran sportation, distribution or use  of the relevant products, the question whether 
any person or enterprise has actually decided to take up that advantage is, in our view, beside the 
point.  
7.184.   We therefore find that India has shown prima facie , and the United  States has not rebutted, 
that the Montana tax incentive "affect[s] the internal sale, offering for sale, purchase, transportation, 
distribution or use" of products'' within the meaning of Article  III:4 of the GATT  1994. 
                                                
437 United  States' first written submission, para.  99. 
438 See para. 2.20 above.  
439 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
440 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
441 Montana Department of Transportation Records file (Exhibit US -10). Our uncertainty is caused by the 
heading of t he document, which refers to "Payments to Alcotech, Ringling, MT". It is not clear whether the 
document relates only to these recipients, and if so whether there were or may be other recipients that 
received payments after 1995.  
442 Panel Report, Canada – Autos, para.  10.84.  
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  7.3.3.2.4   Measure  5: Montana tax credit  
7.185.   India a rgues that the Montana tax credit for biodiesel blending storage provides an 
advantage "based on the use of Montana -origin feedstock for manufacturing biodiesel".443 
More specifically, India submits that the Montana tax credit reduces the investment costs of  eligible 
taxpayers, and therefore "alters the conditions of competition in favour of Montana -origin feedstock 
as well as biodiesel produced from Montana -origin feedstock".444 India concludes that the measure 
therefore "adversely modif[ies] the condition[s] of competition between the domestic and imported 
'like products' and therefore 'affect' the internal sale, offering for sale, purchase and/or use of the 
imported 'like products'".445 
7.186.   The United  States  responds that "Montana Department of Transportation Recor ds indicate 
that no taxpayer has sought to claim the Biodiesel Tax Credit since 2011".446 According to the 
United  States , this "contradicts India's assertion that [the measure] ha[s] incentivized the use of 
products of Montana -origin".447 Further, in the United States ' view, because incentivization "is  the 
vector by which India claims" that the measure at issue affects products, India has "necessarily 
failed to establish that [the measure] has 'affect[ed]' the 'use' of products within the meaning of" 
Article  III:4.448 
7.187.   As explained above449, the Montana tax credit  makes available a "credit against [certain] 
taxes … for the costs of investments in depreciable property used for storing or blending biodiesel 
with petroleum diesel for sale".450 Such credits are, however, only available if the investment in 
respect of which the credit is claimed is "used primarily to blend petroleum diesel with biodiesel 
made entirely from Montana -produced feedstocks".451 Tax-payers who blend petroleum diesel with 
biodiesel made entirely from Montana -produced feedstocks are entitled to the credit, whereas tax -
payers who blend petroleum diesel with biodiesel made wholly or partly from feedstocks originating 
outside Montana are not eligible.  
7.188.   In our view , India's demo nstration that the Montana tax credit confers an advantage on the 
sale, purchase, transportation, distribution or use  of domestic products (i.e. Montana -origin 
feedstock and biodiesel made therefrom) that is not available for use of imported products is 
sufficient to make a prima facie  case that the measure affects the sale, purchase, transportation, 
distribution  or use  of the relevant products.  
7.189.   We note that India has not contested the United  States ' arguments that Montana 
Department of Transportation Recor ds indicate that no taxpayer has claim ed the Montana t ax credit 
since 2011. Moreover, the memorandum from the Montana Department of Revenue dated 16 April 
2018, which the United States submitted in support of its position, does appear to show that no 
credits were paid between 2012 and 2016.452 No data has been provided for 2017 and 2018.  
7.190.   However,  even if  the United  States ' argument was correct , we do not consider that it would 
be capable of rebutting India's prima facie  showing that the measure affects the sale, purchase, 
transportation, distribution or use of the relevant products . This is because, as explained above, the 
relevant question at this point of our analysis is whether the measure has an impact on the conditions 
of competition between domestic and imported like products, not whether or the extent to which it 
has or is actually influencing the purchasing decisions of private firms "under current circumstances". 
In our view, the Montana tax credit, "involves formally different treatment of imported and domestic 
products albeit that the actual trade effects of this different treatment may be minimal under current 
circumstances".453 Thus, in assessing whether the measure affects the sale, purchase, 
                                                
443 India's first written submission, para.  463. 
444 India's first written submission, para.  463. 
445 India's first written submission, para.  463. 
446 United  States' first written submission, paras.  18 and 101 (emphasis  original).  
447 United  States ' first written submission, para.  101. 
448 United  States' first written submission, para.  101. 
449 See para. 2.24 above.  
450 Montana Annotated Code, Section  15-32-703(1) (Exhibit US -11).  
451 Montana Annotated Code, Section  15-32-703(4)(a) (Exhibit US -11). 
452 We note that the document does not provide data for 2017 and 2018, and thus we do not know 
whether payments were made in th ose years.  
453 Panel Report, Canada – Autos , para.  10.84.  WT/DS510/R  
 
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  transportation, distribution or use  of the rele vant products, the question whether any person or 
enterprise has actually decided to take up that advantage is, in our view, beside the point.  
7.191.   We therefore find that India has shown prima facie , and the United  States  has not rebutted, 
that the Montana tax  credit "affect[s] the internal sale, offering for sale, purchase, transportation, 
distribution or use" of products'' within the meaning of Article  III:4 of the GATT  1994. 
7.3.3.2.5   Measure  6: Montana tax refund  
7.192.   India submits that the Montana tax refund "provide[s]  tax refund[] incentives (i.e. an 
advantage) based on the condition that biodiesel must be produced from ingredients originating in 
Montana". According to India, Measure  6 thus "adversely modif[ies] the conditions of competition 
between the domestic and im ported 'like products' and therefore 'affects' the internal sale, offering 
for sale, purchase and/or use of the imported 'like products' ".454 
7.193.   The United  States  responds that "Montana Department of Transportation records indicate 
that no taxpayer has ever applied for (much less received) the Biodiesel Refund".455 According to 
the United  States , this "rebuts India's assertion that that the Biodiesel Refund has created a 
preference (i.e. 'incentivized') for biodiesel manufactured from Montana products".456 In the 
United States ' view, because incentivization "is the vector by which India claims" that Measure 6 
affects products, India has "necessarily failed to establish that [the measure] has 'affect[ed]' the 
'use' of products within the meaning of" Article  III:4.457 
7.194.   As explained above458, the Montana tax refund provides that "licensed distributors" are 
entitled to a refund of two cents per gallon on biodiesel "produced entirely from biodiesel ingredients 
produced in Montana".459 Additionally, the Montana tax refund provides for owners and operators of 
retail motor fuel outlets to receive a tax refund equal to one cent "on biodiesel on which the special 
fuel tax has been paid and that is purchased from a licensed distributor if the biodiesel is produced 
entirely from biodiesel ingredients produced in Montana".460  
7.195.   In our view, India's demonstration that the Montana tax refund makes an advantage 
available for the use of local products (i.e. ingredients of biodiesel and biodiesel made with such 
ingredients), whereas the same advantage is not available when imported or other non -local 
products are used, is sufficient to make a prima facie  case that the Montana tax refund affects the 
sale, purchase, transportation, distribution  or use  of the relevant pr oducts.  
7.196.   We note that India has not contested the United  States ' argument that Montana Department 
of Transportation Records indicate that no taxpayer has ever claim ed the tax refund for biodiesel. 
Moreover, we note that the Montana Department of Transportat ion's Report on Dyed Fuel 
Enforcement, dated 2016 , which the United States submitted in support  of its position, does indeed 
state that "[t]he department has never had any person apply for" the tax refund for biodiesel.461 
This indicates that, at least until  2016 (the year in which the report was produced), no person had 
taken advantage of the incentives made available by Measure 6. 
7.197.   Importantly, however, even if the United  States ' argument were factually correct, we do not 
consider that it would be  capable of  rebutting India's prima facie  case that the measure affects  the 
sale, purchase, transportation, distribution or use of  the relevant products. This is because, as 
explained above, the relevant question at this point of our analysis is whether the measure has an 
impact on the conditions of competition between domestic and imported like products, not whether 
or the extent to which it has or is actually influencing the purchasing decisions of private firms "under 
current circumstances" . In our view, the Montan a tax refund "involves formally different treatment 
                                                
454 India's first written submission, para.  562. 
455 United  States' first written submission, paras.  20 and 103 (emphasis  original).  
456 United  States' first written submission, para.  103 (fn  omitted).  
457 United States' first written submission, para.  103. 
458 See paras.  2.29 and 2.30 above.  
459 Montana Annotated Code, Section  15-70-433(1) (Exhibit IND -37). 
460 Montana Annotated Code, Section  15-70-433(2) (Exhibit IND -37). 
461 Montana Department of Transportation, Report on Dyed Fuel Enforcement Submitted to the Revenue 
and Transportation Interim Committee (2016), p.  4 (Exhibit US -13). 
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  of imported and domestic products albeit that the actual trade effects of this different treatment 
may be minimal under current circumstances".462 Thus, in assessing whether the measure affects 
the sale, pu rchase, transportation, distribution  or use  of the relevant products, the question whether 
any person or enterprise has actually decided to take up that advantage is, in our view, beside the 
point.  
7.198.   We therefore find that India has shown prima facie , and the United  States  has not rebutted, 
that the Montana tax refund "affect[s] the internal sale, offering for sale, purchase, transportation, 
distribution or use" of products'' within the meaning of Article  III:4 of the GATT  1994. 
7.3.3.2.6   Measure  7: Connecticut additional incentive  
7.199.   India submits that Measure  7, which is part of the broader Connecticut Residential Solar 
Investment Program (CRSIP), "provide[s] additional incentives (i.e. an advantage) if the major 
system components of a solar photovoltaic (PV) system are manufactured or assembled  in 
[Connecticut ]". According  to India, it follo ws that Measure  7 "clearly adversely modif[ies] the 
conditions of competition … between domestic and imported like products and therefore 'affect[s]' 
the internal sale, offering for sale, purchase, and/or use of the imported like products".463  
7.200.   The United  States responds that "India has provided no evidence to substantiate its 
suggestion that the [measure at issue] has played a 'decisive' role in inducing consumers to 
'purchase' or 'use' renewable energy components manufactured in Connecticut".464 According to the 
United  States , the evidence submitted by India to establish that payments have been made under 
Measure  7 do "not support India's assertions"465 for two reasons.  
7.201.   First, according to the United  States , the figures cited by India do not make clear what 
proportion of the PV systems that received incentives were manufactured in or contained 
components manufactured in Connecticut.466 In this connection , the United  States  argues that 
India's figures relate to funds disbursed by the Green Bank, whereas in fact "th e Green Bank does 
not have legal authority to [grant the challenged additional incentives] under [the] applicable 
Connecticut Statute".467 Thus, in the United  States ' view, none of the grants recorded in the evidence 
submitted by India could have been "linke d to the purchase or use of Connecticut -manufactured 
solar PV systems or components".468  
7.202.   Additionally, the United  States  argues that although Measure 7 gives the Connecticut Public 
Utilities Regulatory Authority (PURA) the authority to grant an additional incentive of up to 5 % for 
solar PV systems or components manufactured in Connecticut, it does not require  PURA to do so.469 
The United  States  notes that the relevant provision of the measure at issue states that PURA "shall 
provide an additional i ncentive of up to five per cent  of the then -applicable incentive"470, and submits 
that the phrase "up to" indicates that PURA "has the discretion to grant zero additional incentive".471 
In the United  States ' view, "if a challenged measure provides discretion t o administering authorities 
to act in a WTO -consistent manner, then the legislation cannot, 'as such', violate the Member's WTO 
obligations".472 According to the United  States , however, India has not shown that the measure 
mandates the disbursement of additi onal incentives.473 In particular, the United  States  submits that 
India has not adduced any evidence demonstrating that "PURA has issued rules, regulations, or 
guidelines … much less ever made the incentive available to Connecticut homeowners pursuant to 
its discretionary authority".474 Accordingly, in the United  States ' view, "India has failed to 
                                                
462 Panel Report, Canada – Autos , para.  10.84.  
463 India's first written submission, para.  675. 
464 United  States' first written submission, para.  105. 
465 United  States' first written submission, para.  105. 
466 United  States' first written submission, para.  106. 
467 United  States' first written submission, para.  107. 
468 United  States' first written submission , para.  108. 
469 United  States' first written submission, para.  110. 
470 United  States' first written submission, para.  110 (emphasis  original).  
471 United  States' first written submission, para.  110. 
472 United  States' response to Panel question No. 112, para.  3. 
473 United  States' response to Panel question No. 112, para.  3. 
474 United  States' first written submission, para.  111 (emphasis  original).  
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  demonstrate that the [measure at issue] is (or has ever been) legally capable of 'affecting' the 
'purchase' or 'use' of products within the meaning of Article  III:4" of the GATT  1994.475  
7.203.   As explained above476, the CRSIP makes available two kinds of financial incentive s: 
performance -based incentives (PBI), which are available to homeowner s who  acquire  a solar PV 
system under a third -party financing structure (i.e. by way o f a lease or a power purchase 
agreement), and expected performance -based buydowns (EPBB), which are available to 
homeowner s who purchase  a solar PV system from an Eligible Contractor.477 As a general matter, 
these incentives are paid at rates determined and published by the Connecticut Green Bank.478 Under  
the CRSIP, PURA may make available additional incentives of up to 5% of the ordinarily available 
incentive479 for the use of "major system components manufactured or assembled in Connecticut", 
and another additional incentive of up to 5% of the ordinarily available incentive may be made 
available "for the use of major system components manufactured or assembled i n a distressed 
municipality … or a targeted investment community".480 Thus, Measure  7 provides additional 
incentives where PV systems contain "major system components" manufactured or assembled 
locally.  
7.204.   In our view, India's demonstration that the Connecticut  additional incentive provides an 
advantage for the use of local products but not for the use of imported or other non -local products 
is sufficient to make a prima facie  case that the measure affects the sale, purchase, transportation, 
distribution  or use  of the relevant products.  
7.205.   As noted, the United  States  has attempted to rebut India's case with two arguments. First, 
the United  States  argues that the measure allows but does not mandate  the provision of any 
additional incentives. This is so because, accor ding to the United  States , the relevant provision of 
the CRSIP provides that PURA shall provide additional incentives of "up to" 5%, and the use of the 
term "up to" implies that PURA may decide to pay an additional incentive of 0%. Second, the 
United  State s argues that the data  submitted by India does not show that any additional incentive 
payments have  in fact  been made.  
7.206.   We agree with the United  States  that, if the measure at issue simply granted PURA 
discretionary authority to make additional incentives a vailable for the use of local content, this may 
raise a question about whether the text of the measure would, without more, be sufficient to 
establish that the measure affects  the sale, purchase, transportation, distribution or use of  products 
within the m eaning of Article  III:4. In our view, however, we are not confronted with such a situation 
in the present case.  
7.207.   To recall, Section  16-245ff(i) of the General Statutes of Connecticut provides that PURA 
"shall provide an additional incentive of up to five p er cent of the then -applicable incentive …".481 As 
noted, the United  States  submits that the use of the phrase "up to" indicates that PURA could set 
the additional incentive rate at 0%. We find this argument difficult to accept. The term "up to" means 
"as hi gh or as far as".482 It does not relate to the base or starting point from which a thing (such as 
the rate of a payment) begins to ascend "up to" a certain higher point. Thus, as we understand it, 
the use of the term "up to" in Section  16-245ff(i) simply mea ns that PURA may set additional 
incentives as high as 5%, but no higher. It does not shed light on whether PURA could set the 
incentive rate at 0%, or whether PURA is required or only permitted to disburse the additional 
incentive.  
7.208.   Moreover, we find the United  States ' position difficult to reconcile with the statute's use of 
the term "shall". As past panels have noted, the term "shall" "denotes a requirement that is 
                                                
475 United  States' first written submission, para.  111 (emphasis  original).  
476 See paras. 2.32 - 2.35 above.  
477 General Statutes of Connecticut, Section  16-245ff(c) (Exhibit IND -124).  
478 General Statutes of Connecticut, Section  16-245ff(f) (Exhibit IND -124).  
479 General Statutes of Connecticut, Section  16-245ff(i) (Exhibit IND -124).  
480 Genera l Statutes of Connecticut, Section  16-245ff(i) (Exhibit IND -124).  
481 General Statutes of Connecticut, Section  16-245ff(i) (Exhibit IND -124) (emphasis  added).  
482 Oxford Dictionaries Online, definition of "up to" 
http://www.oed.com/view/Entry/219798?rskey=volPsV&result=1&isAdvanced=false#eid16164799  (accessed 
10 April 2019).  
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  obligatory in nature and that goes beyond mere encouragement".483 This is consistent with the 
ordinary meaning of the term as reflected in the Oxford English Dictionary , which defines the word 
"shall" as relating, inter alia , to a "command" .484 We consider that Section  16-245ff(i) commands , 
requires , or obligates  PURA to make additional incentives available. In this sense, it does not simply 
allow or enable PURA to disburse additional incentives, but requires it to make such additional 
incentives available. Moreover, in our view, such a command would not be fulfilled if PURA we re to 
set the additional incentive at 0%. To set the rate at 0% would, in effect, be not to grant an additional 
incentive at all, and thus not to conform to the obligation imposed by the plain language of 
Section  16-245ff(i).  
7.209.   Accordingly, we do not consid er that the ordinary meaning of the text supports the 
United  States ' view that, under  the CRSIP, PURA may set an additional incentive of 0%, and that 
India has therefore failed to establish that the measure is legally capable of affecting the purchase 
or use of products within the meaning of Article  III:4. To the contrary, as we read it, the text of 
Section  16-245ff(i) requires  PURA to set a level of additional incentives no higher than 5% of the 
applicable base rate, but more than 0%. This is so  because a rate of 0% would mean that, in effect, 
no incentive is made available. Setting a rate of 0% would therefore be contrary to the plain words 
of the relevant provision . Because the provision requires a level of additional incentives to be set, 
we do not consi der that the so -called mandatory/discretionary principle  raised by the 
United  States485 is implicated in our analysis of Measure 7 . 
7.210.   This brings us to the United  States ' second argument, namely, that the data submitted by 
India does not show that additional incentive  payments  have been made . We note, however, that  
India did not adduce these data in the specific context of its claim that Measure  7 affects the sale, 
purcha se, transportation, distribution or use  of the relevant products within the meaning of 
Article  III:4, but rather in its more general description of this measure. Accordingly, we do not 
consider that India intended to rely on this evidence as an essential e lement of its argument  that 
Measure  7 affects the sale, purchase, transportation, distribution or use  of the relevant products . 
Nor do we think that India needed to do so . As we have explained, the relevant question at this 
point of our analysis is whether  the measure has an impact on the conditions of competition, not 
whether or the extent to which it has or is actually influencing the purchasing decisions of private 
firms "under current circumstances ".  
7.211.   Accordingly, even if the United  States ' argument  were correct and it were accepted that the 
evidence submitted by India does not show that additional incentives have been paid, this would, in 
our view, be insufficient to rebut India's prima facie  case based on the text of Measure  7. This is 
because, as explained above, the relevant question at this point of our analysis is whether the 
measure has an impact on the conditions of competition between domestic and imported like 
products, not whether or the extent to which it has or is ac tually influencing the purchasing decisions 
of private firms "under current circumstances". In our view, the Connecticut additional incentive 
"involves formally different treatment of imported and domestic products albeit that the actual trade 
effects of t his different treatment may be minimal under current circumstances".486 Thus, in 
assessing whether Measure  7 affects the sale, purchase, transportation, distribution or use of the 
relevant products, the question whether any person or enterprise has actually decided to take up 
that advantage is, in our view, beside the point.  
7.212.   This logic also leads us to conclude that we need not determine, for the purposes of resolving 
this claim, whether the Green Bank is authorized to make additional incentive payments, as I ndia 
argues. What matters for the purposes of the present claim is the existence of a measure that  
accord s, on its face, formally different treatment to imported and domestic products487, and thus 
impacts the conditions of competition,  and not whether that m easure has or is actually having 
market effects, including by influencing the purchasing decisions of private firms. In our  view, 
therefore, d etails concerning the internal administration of the additional incentive, such as the 
                                                
483 Panel Report, EC – Sardines , para.  7.110.  
484 Oxford Dictionaries Online, defi nition of "shall" 
http://www.oed.com/view/Entry/177349?rskey=khh0Pw&result=1&isAdvanced=false#eid  (accessed 
10 April 2019).  
485 United  States' response to Pa nel question No. 112, para.  3. 
486 Panel Report, Canada – Autos , para.  10.84.  
487 Panel Report, Canada – Autos , para.  10.84.  WT/DS510/R  
 
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  precise identity of the ent ity authorized to pay it, are not determinative of whether the measure 
affects the sale, purchase, transportation, distribution or use of the relevant products . 
7.213.   We therefore find that India has shown prima facie , and the United  States  has not rebutted, 
that the Connecticut additional incentive "affect[s] the internal sale, offering for sale, purchase, 
transportation, distribution or use" of products within the meaning of Article  III:4 of the GATT  1994. 
7.3.3.2.7   Measure  8: Michigan Equipment Multiplier / Michigan Labour Multiplier  
7.214.   India submits that the Renewable Energy Standards Program in the State of Michigan 
(RESPM)  "provide[s] higher incentives (i.e. an advantage) based on the in -state manufacture level 
of the renewable energy system". According to In dia, this necessarily means that Measure  8 
"adversely modif[ies] the conditions of competition between domestic and imported 'like products' 
and therefore 'affect[s]' the internal sale, offering for sale, purchase[,] and/or use of the imported 
'like produc ts'".488 
7.215.   The United  States  submits that the evidence submitted by India shows that renewable 
energy credits (RECs) issued pursuant to the Michigan Equipment Multiplier "have accounted for only 
0.0000878% of all RECs generated since" the RESPM entered into fo rce in 2009. According to the 
United  States489, this "rebuts any suggestion that [the] Michigan Equipment Multiplier has 'induced' 
(i.e. incentivized) buyers to 'purchase' or 'use' renewable energy systems made in Michigan as 
opposed to imported like product s".490 The United  States  argues that because incentivization "is the 
vector by which India claims" that the measure at issue affects products, India has "necessarily 
failed to establish that [the measure] has 'affect[ed]' the 'use' of products within the mea ning of" 
Article  III:4.491  
7.216.   As explained above492, the RESPM requires electric providers to maintain renewable energy 
credit portfolios. Electric providers obtain RECs by generating or purchasing renewable energy, at  a 
rate of one credit per megawatt hour of e lectricity generated from each of their renewable energy 
systems.493 However, additional RECs are available per megawatt hour produced from renewable 
energy systems constructed using ( i) equipment made in Michigan (Michigan Equipment 
Multiplier)494; or (ii) a workforce composed of residents of Michigan (Michigan Labour Multiplier).495 
Such additional RECs are not available for energy produced using a renewable energy system made 
wholly or partly from equipment manufactured outside of Michigan, or constructed by n on-Michigan 
workforce.  
7.217.   In our view, India's demonstration that the Michigan Equipment and Labour Multipliers make 
an advantage available for the use of local products (i.e. renewable energy systems manufactured 
using Michigan -origin components or by a wor kforce made up of Michigan residents), whereas the 
same advantage is not available when imported or other non -local products are used, is sufficient 
to make a prima facie  case that the Michigan Equipment and Labour Multipliers affect the sale, 
purchase, tr ansportation, distribution  or use  of the relevant products.  
7.218.   India has not contested  the United  States ' assertion that the evidence on the record shows 
that only a miniscule number of RECs generated under  the RESPM (some 0.0000878 %) have been 
issued pursuant to the Michigan Equipment Multiplier. In our view, the evidence relied upon by both 
parties, the Michigan Public Service Commission's Annual Report of Implementation of PA 295 
Renewable Energy Standard and the Cost -Effectiveness  of Energy Standards, is somewhat unclear, 
because although it contains the graphs relied upon by the United  States  in support of its position, 
it also contains a series of pie charts that appear to show that between 2009 and 2015 an average 
of 10% of annu al RECs were generated as "incentive" RECs.496 Moreover, the aforementioned Annual  
                                                
488 India's first written submission, para.  777. 
489 United  States' first written submission, para.  117. 
490 United  States' first written submission, para.  118. 
491 United  States' first written submission, para.  118. 
492 See para. 2.40 above.  
493 Michigan Public Act No. 342, Section  39(1) (Exhibit IND -44). 
494 Michigan Public Act No. 342, Section  39(2)(d) (Exhibit IND -44). 
495 Michigan Public Act No. 342, Section  39(2)(e) (Exhibit IND -44). 
496 Michigan Public Service Commission, Annua l Report of Implementation of PA 295 Renewable Energy 
Standard and the Cost -Effectiveness of Energy Standards (15 February 2017), Appendix D (Exhibit US -20). 
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  Report  states that "[i]t appears that Michigan's incentive REC provision is meeting its intended 
purpose to encourage developers to maximize utilization of Michigan equipment and labour".497 We 
are not entirely clear how  to reconcile  these pie charts and this statement with the United  States ' 
argument that the report indicates that only a tiny fraction of a per cent of all RECs have been 
generated pursuant to the challenged incen tives.  
7.219.   However,  even if  the United  States ' argument were correct, we do not consider that it would 
be capable of rebutting India's prima facie  showing that the Multipliers affect the  sale, purchase, 
transportation, distribution or use of the  relevant produ cts. This is because, as explained above, the 
relevant question at this point of our analysis is whether the measure has an impact on the conditions 
of competition between domestic and imported like products, not whether or the extent to which it 
has or is actually influencing the purchasing decisions of private firms "under current circumstances" . 
In our view, the Michigan Equipment an d Labour Multipliers "clearly involve[] formally different 
treatment of imported and domestic products albeit that the actual trade effects of this different 
treatment may be minimal under current circumstances".498 Thus, in assessing whether the 
Multipliers  affect the sale, purchase, transportation, distribution or use of the relevant products, the 
question whether any person or enterprise has actually decided to take up that advantage is, in our 
view, beside the point.  
7.220.   We therefore find that India has show n prima facie , and the United  States  has not rebutted, 
that the Michigan Equipment Multiplier and the Michigan Labour Multiplier "affect the internal sale, 
offering for sale, purchase, transportation, distribution or use" of products within the meaning of 
Article  III:4 of the GATT  1994. 
7.3.3.2.8   Measure  9: Delaware Equipment Bonus / Delaware Workforce Bonus  
7.221.   India submits that both the Delaware Equipment and Workforce Bonuses "provide higher 
incentives (i.e. an advantage) based on the in -state manufacture level of th e specified renewable 
energy equipment".499 India contends that, as a result, the conditions of competition between 
domestic and imported like products are modified to the detriment of the latter, and therefore both 
the Delaware Equipment and Workforce Bonus es affect the sale, purchase , transportation, 
distribution or use of the relevant products .500 
7.222.   The United  States  responds that "India has failed to demonstrate that the Delaware 
Equipment Bonus incentivizes the 'purchase' of renewable energy products manufac tured in 
Delaware."501 According to the United  States , "India has failed to demonstrate that  RECs [renewable 
energy credits] associated with the 'Delaware Equipment Bonus' (i.e., 'Bonus RECs') in particular  
are tradable instruments or have independent monetary value."502 The United  States  supports its 
view with reference to the language of the provision setting forth the Delaware Equipment Bonus503, 
which establishes that retail electricity suppliers shall recei ve an additional 10% credit " toward 
meeting the renewable energy portfolio standards …".504 For the United  States , this shows that "retail 
electricity suppliers cannot trade Bonus RECs for monetary value, but use them only for purposes of 
satisfying their obl igations under Delaware's [renewable energy portfolio standards]".505  
7.223.   Furthermore, the United  States  submits that India has failed to demonstrate that "the 
prospect of receiving Bonus RECs incentivizes retail electricity suppliers to purchase renewable 
energy generation equipment made in Delaware."506 In that respect, the United  States  is of the view 
that the Delaware Equipment Bonus cannot incentivize the purchase or use of equipment 
manufactured in Delaware because it is granted to retail electricity suppliers that do not generate 
power but only distribute it. The United  States  indicates that the Delaware  Equipment Bonus is not 
                                                
497 Michigan Public Service Commission, Annual Report of Implementation of PA 295 Renewable Energy 
Standard and the Cost -Effectiveness of Energy Standards (15 February 2017), pp.  22-23 (Exhibit US -20). 
498 Panel Report, Canada – Autos , para.  10.84.  
499 India's first written submission, para.  871. 
500 India's first written submission, para.  871. 
501 United  States ' first written submission, para.  119. 
502 United  States' first written submission, para.  120 (emphasis  original).  
503 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  351(d) (Exhibit IND -54). 
504 United  States' first written submission, para.  120 ( emphasis  original).  
505 United  States' first written submission, para.  120. 
506 United  States' first written submission, para.  121. 
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  addressed to "generation units", which are the ones generating power and making purchasing 
decisions as to renewable energy generation equipment.507  
7.224.   Finally, the United  States  notes that "'[s]olar panels are no longer manufactured in  Delaware' 
and have not been produced in Delaware since 2013".508 As argued with respect to other measures 
at issue, the United  States  considers that "[b]ecause incentivization is the vector by which India 
claims that Delaware Equipment Bonus 'affects' the ' purchase' or 'use' of products within the 
meaning of Article  III:4, India has necessarily failed to establish that the Bonus 'affects' the 'use' of 
products".509 
7.225.   As explained above510, the Delaware Renewable Energy Portfolio Standards Act ( REPSA ) 
provides reta il electricity suppliers with an additional 10% credit toward meeting the renewable 
energy portfolio standards for solar or wind energy installations, provided that a minimum of 50% 
of the cost of renewable energy equipment, inclusive of mounting component s, are manufactured in 
Delaware (the Delaware Equipment Bonus), or that the facility is constructed or installed with a 
minimum of 75% in -state workforce (the Delaware Workforce Bonus). These bonuses can be applied 
cumulatively. The measure does not requir e the use of renewable energy equipment at least partially 
(50%) manufactured in Delaware or facilities constructed by a Delaware -based workforce, but in the 
absence of such equipment or facilities, no additional credits will be generated.  
7.226.   In our view, In dia's demonstration that the Delaware Equipment and Workforce Bonuses 
make an advantage available for the use of local products (i.e. renewable energy equipment 
manufactured using Delaware -origin inputs or by a workforce made up of Delaware residents), 
whereas the same advantage is not available when imported products are used, is sufficient to make 
a prima facie  case that the measure affects the sale, purchase, transportation, distribution or use of 
the relevant products.  
7.227.   Turning to the United  States ' argu ment that India has failed to demonstrate that the RECs 
are tradable instruments or have independent monetary value, we start by noting that, as indicated 
by the United  States , retail electricity suppliers may use RECs and solar renewable energy credits  
(SRECs ) to secure compliance with the renewable energy portfolio standards established pursuant 
to the relevant subchapter of the Delaware Code.511 The Delaware Code also provides  in its 
Section  360(a)  for the possibility for retail electricity suppliers to " sell or transfer any [REC] or 
[SREC] not needed to meet said standards".512 Therefore, we do not agree with the United  States ' 
argument that retail electricity suppliers can use their RECs or SREC s "only for purposes of satisfying 
their obligations under Del aware's [renewable energy portfolio standards]".513 In light of the text of 
Section  360(a) of the Delaware Code, it is clear to us that retail electricity suppliers are allowed to 
sell or transfer any RECs or SRECs they may not need to achieve their  renewabl e energy portfolio 
standards.  The reference in Sections 356(d) and (e) of the Delaware Code to "additional 10% credit 
toward meeting the renewable energy portfolio standards " does not preclude the possibility, in our 
view, of retail electricity suppliers s elling or transferring the RECs or SRECs not needed in order to 
meet the standard. We consider that any potential derogation of such possibility would have been 
explicitly provided by the legislator.  
7.228.   Moreover, there is considerable  evidence on the record that supports our view that RECs 
and SRECs are tradable instruments with monetary value. First, the Delaware Code defines both 
RECs and SRECs as "tradable instrument[s]".514 Second, India has provided a number of exhibits 
referring to the establishment of a market to trade such instruments , as well as detailed regulations 
governing the procurement process. By way of example, we find numerous references in the 
                                                
507 United  States' first written submission, paras.  122-123. 
508 United  States' first written submission, para.  124. 
509 United  States ' first written submission, para.  125. 
510 See para. 2.52 above.  
511 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  360(a) (Exhibit IND -54). 
512 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  360(a) (Exhibit IND -54). 
513 United  States' first written submission, para.  120. 
514 Delaware Code, Title 26 , Chapter 1, Subchapter III -A, Sections 352(18) and 352(25) (Exhibit 
IND-54). 
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  REPSA515 to the existence of a market where RECs can be  transferred or sold among retail electricity 
suppliers.516 We further find on the record exhibits explaining how to sell RECs517, as well as  
recommendations of the renewable energy taskforce on the State of Delaware Pilot Program for the 
Procurement of SRECs where prices per SREC are listed.518 In light of the evidence provided, we 
conclude  that RECs and SRECs have monetary value and can be traded.  
7.229.   We now move on to the United  States ' argument that India has failed to prove that the 
Delaware Bonuses incentivize the purchase of renewable energy generation equipment of Delaware 
origin because they are addressed to entities (i.e. retail electricity suppliers) that do not generate 
electricity but only distribute it. We first note that,  as the United States argues,  retail electricity 
suppliers do not generate electricity. The Delaware Code defines  "retail electricity supplier" as "a 
person or entity that sells electrical energy to end -use customers in Delaware, including but not 
limited to non -regulated power producers, electric utility distribution companies supplying standard 
offer, default servi ce, or any successor service to end -use customers."519 We further note that, 
despite the fact that generation units can be entitled to RECs and SRECs under certain 
circumstances520, the text of the Delaware Bonuses explicitly identifies retail electricity supp liers as 
the only potential recipients of the 10% additional credits .521  
7.230.   Nevertheless, we note that Measure 9 makes additional credits available to electricity 
distributors who distribute electricity generated using local equipment. In other words,  electric ity 
distributors  receive extra credit s when they distribute such energy, but do not receive  these  credits  
if and when they distribute energy generated using non -local, including imported equipment. In our 
view, the measure thus formally treats local and imported equipment differently, and therefore has 
an impact on the conditions of competition in the market for the equipment itself.  The fact that the 
electricity distributors who are entitled to receive the benefit are not themse lves generating 
electricity is beside the point.  
7.231.   Finally, we are of the view that the United  States ' argument with respect to the absence of 
solar panel manufacturing activity in Delaware since 2013 cannot rebut India's prima facie  case that 
the Delaware B onuses affect the purchase and use of the relevant products. First, the Delaware 
Equipment Bonus and the Delaware Workforce Bonus encompass both solar and wind energy 
installations.522 Thus, these additional credits do not just relate to "solar panels" , but also to wind 
energy installations as well as solar energy installations other than "solar panels". Additionally, we 
recall that  the relevant question at this point of our analysis is whether the measure has an impact 
on the conditions of competition betwee n domestic and imported like products, not whether or the 
extent to which it has or is actually influencing the purchasing decisions of private firms "under 
current circumstances". In our view, the Delaware Equipment and Workforce Bonuses "clearly 
involve[ ] formally different treatment of imported and domestic products albeit that the actual trade 
effects of this different treatment may be minimal under current circumstances".523 Therefore, in 
assessing whether the Delaware Equipment Bonus and the Delaware Wo rkforce Bonus affect the 
internal sale, offering for sale, purchase, transportation, distribution or use" of the relevant 
equipment in the Delaware market,  the fact that solar panels have not been produced in Delaware 
since 2013 is beside the point.  
                                                
515 Subchapter III -A in Chapter 1 of Title 26 of the Delaware Code governing the renewable energy 
portfolio Standards is known as the "Renewable Energy Portfolio Standards Act". See Delaware Code, Title 26, 
Chapter 1, Subchapter III -A, Section  351(a) (Exhibit  IND-54). 
516 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  359(a) (Exhibit IND -54). See also 
Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section s 359(c)(2)(b) and 359(d)(Exhibit IND -54). 
517 PJM GATS, How Do I Sell RECs? (Exhibit IND -95). 
518 Recommendations of the Renewable Energy Taskforce (Exhibit IND -58). 
519 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  352(22) (Exhibit IND -54). This 
Section  further clarifies that "[a] retail electricity supplier does not include a mu nicipal electric company".  
520 RESPA Rule 3.1.8 provides that "[u]pon designation as an Eligible Energy Resource, the Generation 
Unit's owner shall be entitled to one (1) REC for each mega -watt hour of energy derived from Eligible Energy 
Resources other than  Solar Photovoltaic Energy Resources. Upon designation as an Eligible Energy Resource, 
the owner of a Generation Unit employing Solar Photovoltaic Energy Resources shall be entitled to one (1) 
SREC for each mega -watt hour of energy derived from Solar Photo voltaic Energy Resource". See Rules and 
Procedures to Implement the Renewable Energy Portfolio Standard (Exhibit IND -55). 
521 Delaware Code, Title 26, Chapter 1, Subchapter III -A, Section  356(d) and (e) (Exhibit IND -54). 
522 Delaware Code, Title 26, Chapter 1,  Subchapter III -A, Section  356(d) and (e) (Exhibit IND -54). 
523 Panel Report, Canada – Autos , para.  10.84.  
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  7.232.   We the refore find that India has shown prima facie , and the United  States  has not rebutted, 
that the Delaware Equipment Bonus and the Delaware Workforce Bonus "affect[] the internal sale, 
offering for sale, purchase, transportation, distribution or use" of produ cts'' within the meaning of 
Article  III:4 of the GATT  1994.  
7.3.3.2.9   Measure  10: Minnesota production incentives and rebates  
7.233.   India argues that the Minnesota solar energy incentive program  (SEPI) and the Minnesota 
solar photovoltaic ( PV) rebate are granted "if the specified products (i.e. solar PV modules …) are 
manufactured in Minnesota".524 India considers that these advantages "clearly adversely modify the 
conditions of competition between domestic and imported like products and therefore 'affect' the 
internal sale, offering for sale, purchase and/ or use of the imported like products".525 
7.234.   The United  States  responds that India has failed to demonstrate that the se program s under 
Measure  10 incentivize the use or purchase of solar products of Minnesota origin.526 In particular, 
the United  States  refers to a graph from a 2016 Minnesota Department of Revenue (DOR) press 
release in which the figures show that "solar installations that received incentives under the Solar 
PV Incentive program accounted for less than three  per cent of all solar installations in Minnesota 
during 2016".527 As for the Minnesota solar PV rebate , the United  States  argues that, " [s]ince 
incentivization is the vector by which India claims that this measure 'affects' the 'purchase' or 'use' 
of products…  India has necessarily failed to establish that [ it] 'affect s' the 'use' of products" within 
the meaning of Article  III:4.528 
7.235.   As explained above529, the SEPI and the Minnesota solar PV rebate grant incentives and 
rebates for the use of solar PV module s made in Minnesota. Although use of  non-local, including  
imported , solar PV modules is not prohibited or otherwise limited, we note that, where such modules 
are used , the financial incentives and rebates set forth in Sections 216C.411 - 415 and 116C.7791 
of the 2016 Minnesota Statutes are not provided , given that such modules do not fulfil the 
requirement of having been manufactured in Minnesota.  
7.236.   In our view, India's demonstration that these two program s under Measure  10 confer an 
advantage on the use of relevant domestic products (i.e. solar PV modules ) that is not available for 
the use of  the relevant  like imported products is sufficient to make a prima facie  case that the 
measure affects the sale, purchase, transportation, distribution or use of the relevant products.  
7.237.   We now turn to the United  States ' argument relating to the "negligible amount" of solar 
installations that received incentives under the SEPI during 2016.530 As noted above, the 
United States  submits  that less than 3% of all solar installations in Minnesota during 2016 received 
incentives under the SEPI. We note that India has not contested this argument, and indeed  the chart 
in the DOR press release indicates the number of applican ts and projects funded for each investor -
owned electric utilities (Xcel Energy, Minnesota Power, and Otter Tail Power)  under the SEPI .531 
7.238.   We do not consider that this argument by the United  States  is capable of rebutting India's 
prima facie  showing that the measure affects the relevant products. This is because, as explained 
above, the relevant question at this point of our analysis is whether the measure has an impact on 
the conditions of competition between domestic and imported like products, not whether or the 
extent to which it has or is actually influencing the purchasing decisions of private firms "under 
current circumstances". In our view, the SEPI and the Minnesota  solar PV rebate "involve[] formally 
different treatment of imported and domestic products albeit that the actual trade effects of this 
different treatment may be minimal under current circumstances".532 Thus, in assessing whether 
these two  program s affect t he sale, purchase, transportation, distribution or use of the relevant 
                                                
524 India's first written submission, para.  1010.  
525 India's first written submission, para.  1010.  
526 United  States' first written submission, para.  127. 
527 United  States' first written submission, para.  128 (referring to India's first written submission, 
para. 983).  
528 United  States' first written submission, para.  129. 
529 See paras.  2.57 and 2.65 above.  
530 United  States' first written submission, para.  129. 
531 United  States' first written submission, para.  128 (referring to India's first  written submission, 
para. 983).  
532 Panel Report, Canada – Autos , para.  10.84.  WT/DS510/R  
 
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  products, the question whether many or few projects have benefitted from the advantage, or the 
extent to which they have done so is, in our view, beside the point.  
7.239.   We therefore find th at India has shown prima facie , and the United  States  has not rebutted, 
that the SEPI and the Minnesota solar PV rebate under Measure  10 "affect[] the internal sale, offering 
for sale, purchase, transportation, distribution or use" of products within the m eaning of Article  III:4 
of the GATT  1994. 
7.3.3.3   Conclusion on "laws, regulations, and requirements affecting the[] internal sale, 
offering for sale, purchase, transportation, distribution or use" of relevant products  
7.240.   In conclusion, we find that India has shown prima facie , and the United  States  has not 
rebutted, that each of the measures at issue is a "law", "regulation" or "requirement" "affecting the[] 
internal sale, offering for sale, purchase, transportation, distribution or use" of the relevant products 
within the meaning of Article  III:4 of the GATT  1994. 
7.3.4   Less favourable treatment  
7.241.   India argues that the measures at issue accord treatment less favourable to imported 
products than to like domestic products by incentivizing the use of domestic inputs and  thereby 
denying effective equality of opportunity to the imported products to compete in the domestic 
market.533 India further argues that the measures at issue do not provide equality of opportunity to 
the imported products to compete in the domestic market, a nd that they also modify the conditions 
of competition in the relevant domestic market to the detriment of imported products.534 
7.242.   The United  States  argues that " if a measure does not 'affect' the use … of a product, it is 
difficult to see how the measure coul d 'modify the conditions of competition' with respect to that 
product on the market" in such a way as to give rise to less favo urable treatment .535 According to 
the United  States , since in this case India has failed to show that any of the measures affect th e 
sale, purchase, transportation, distribution or use of a product, it has necessarily failed to show that 
they modify the conditions of competition.536  
7.243.   According to the Appellate  Body, the term "treatment no less favourable" "requires effective 
equality of  opportunities for imported products to compete with like domestic products".537 Thus, 
the question "[w]hether or not imported products are treated 'less favourably' than like domestic 
products should be assessed … by examining whether a measure modifies the  conditions of 
competition  in the relevant market to the detriment of imported products"538 or, in other words, 
whether any "regulatory differences distort the conditions of competition to the detriment of 
imported products".539  
7.244.   We agree with the United State s that, in principle, it is difficult to see how a measure could 
accord less favourable treatment to imported than to domestic products without it affecting the sale, 
purchase, transport, distribution or use of such products. We recall, however, that less favourable 
treatment and the affecting standard are two distinct elements of the legal test under Article III:4 
of the GATT  1994, and raise related but different considerations. The question whether a measure 
affects the sale, purchase, transportation, distribution or use of products concerns whether the 
challenged measure impacts the conditions of competition540, whereas l ess favourable treatment 
                                                
533 India's first written submission, paras.  51, 172, 274, 366, 464, 563, 676, 778, 873, 1011 and 1119.  
534 India's first written submission, paras.  54, 175, 277, 369, 467, 566, 679, 781, 876, 1014 and 1122.  
535 United  States' first written submission, para.  80. 
536 United  States' first written submission, para.  84. 
537 Appellate Body Reports, EC – Seal Products , para.  5.101 (fns  omitted).  
538 Appellate Body Report, Korea – Various Measures on Beef , para.  137 (emphasis  original). See also 
Appellate Body Reports, EC – Seal Products , para.  5.101.  
539 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 128. 
540 See para. 7.161  above.  
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  focuses on whether the challenged measure modifies the conditions of competition to the detrim ent 
of imported products .541  
7.245.   Importantly, in the context of less favourable treatment, the Appellate  Body has repeatedly 
emphasi zed that an assessment under Article  III:4 of the GATT  1994 "may well involve – but does 
not require – an assessment of the conte sted measure in the light of evidence regarding the actual 
effects of that measure in the market".542 A finding of less favourable treatment therefore "need not 
be based on the actual effects  of the contested measure in the marketplace".543 Moreover, "it does 
not require demonstration of trade effects, nor  proof that the sourcing decisions of private firms 
have actually been impacted by" the measure at issue.544 Indeed, the Appellate  Body has 
underscored  that "it is irrelevant that the trade effects of [a  challen ged measure], as reflected in the 
volumes of imports, are insignificant or even non -existent".545 This is so because "Article  III protects 
expectations not of any particular trade volume but rather of the equal competitive relationship 
between imported and d omestic products."546  
7.246.   Thus, a panel should attempt to discern "[t]he implications of the contested measure for the 
equality of competitive conditions … first and foremost "547 by engaging in "careful scrutiny of the 
measure, including consideration of the design, structure, and ex pected operation of the measure 
at issue".548 This "careful examination"  must be "grounded in close scrutiny of the fundamental 
thrust and effect of the measure  itself".549 To succeed, a  claim of less favourable treatment "cannot 
rest on simple assertion", but  "will normally require further  identification or elaboration of [the 
challenged measure's] implications for the conditions of competition" .550 
7.247.   We note that, throughout these proceedings, the United  States  has argued that, although 
India is not required "to proffer empirical evidence that the measures at issue have incentivized the 
purchase or use domestic products", it does "bear the burden of demonstrating that the challenged 
measures are bound or likely to have such incentivizing effects".551 In our view, however, a 
complainant need not show that a challenged measure is "bound or likely" to modify the conditions 
of competition to the detriment of imported products in order to establish the existence of less 
favourable treatment. To the contrar y, the Appellate  Body has held that "an  analysis of less 
favourable treatment should not be anchored in an assessment of the degree of likelihood that an 
adverse impact on competitive conditions will materialize"552, and both GATT553 and WTO panels 
have explai ned that "a measure can be found to be inconsistent with Article  III:4 because of its 
potential  discriminatory impact on imported products".554 As we understand it, therefore, a 
                                                
541 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 128 (referring to Appellate Body 
Report, Korea – Various Measures on Beef , para. 137).  
542 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 134. In the same vein, 
the Appellate Body explained that "[t]he analysis of whether imported products are accorded less favourable 
treatment … need not be based on empirical evidence as to the actual effects of the measure at issue in the 
internal market of th e Member concerned", although "[o]f course, nothing precludes a panel from taking such 
evidence of actual effects into account." Ibid., para. 129.  
543 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  215 (emphasis original, fn omitted, 
referring to  Appellate Body Report, Japan – Alcoholic Beverages II , DSR 1996:I, 97, at 110).  
544 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159 (fn omitted, referring to Panel Report, 
Canada -Autos , supra , paras. 10.84 and 10.78; and Appellate Body Report, Japan  – Alcoholic Beverages II, 
pp. 16-17). 
545 Appellate Body Report, Japan – Alcoholic Beverages II , p. 16. See also Appellate Body Report, Korea 
– Alcoholic Beverages , para. 119.  
546 Appellate Body Report, Japan – Alcoholic Beverages II , p. 16.  
547 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 130 (emphasis  added).  
548 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 134. See also ibid., para. 130.  
549 Appellate Body Report, Thailand – Cigarettes (Philippines) , para.  129 (referring to Appellate Body 
Reports, US – FSC (Article 21.5 – EC), para. 215; and Korea – Various Measures on Beef , footnote  44 to para. 
142).  
550 Appellate Body Report, Thailand – Cigarettes (Philippines) , para.  130. 
551 United  States' second written submission, para.  13 (emphasis  original).  
552 Appellate Body Report, Thailand – Cigarettes (Philippines) , para.  134. 
553 GATT Panel Report, US – Section  337, para.  5.13 (observing that numerous GATT panels made 
findings under Art icle III:4 of the GATT 1947 "base[d] … on the distinctions made by the laws, regulations or 
requirements themselves and on their potential impact, rather than on the actual consequences for specific 
imported products").  
554 Panel Report, Canada – Autos , para . 10.78 (emphasis added, fn omitted, referring to Panel Report on 
US – Section  337, paras. 5.11 and 5.13).  
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  complainant is not required to quantify  the likelihood that a challenged measure  will in fact have a 
detrimental impact on imported products in order to make a prima facie  case of less favourable 
treatment. Rather,  the focus of the analysis is on the implications of the measure for the market, as 
they are discern ible from the "design,  structure, and expected operation of the measure".555 
7.248.   With these considerations in mind, we turn to examine each of the challenged measures to 
determine whether they accord to imported products treatment less favourable than that accorded 
to like products o f national origin.  
7.3.4.1   Measure  1: Washington State additional incentive  
7.249.   India submits that the Washington State additional incentive accords less favourable 
treatment to imported products vis-à-vis domestic like products "by incentivizing the use of the 
specif ied components manufactured in Washington and thereby denying the effective equality of 
opportunity to the imported products to compete in the domestic market of Washington" .556 
India argues that the economic development factor applied on the incentive base rate to calculate 
the incentive payment is higher "when compared to same components manufactured outside 
Washington", thereby resulting in a higher incentive payment.557 According to India, Measure  1 will 
lead buyers to prefer specified products manufactured  in Washington over like imported  products .558 
7.250.   The United  States  responds that "India [has not] provided evidence that demonstrates that 
the measure at issue has modified the 'conditions of competition' in Washington's market for 
renewable energy products 'to the determinant [sic] of imported products'".559 In the United  States ' 
view, since India has failed to establish that the measures affect the sale, purchase, transportation, 
distribution or use of the relevant products , it has "failed to demonstrate that the measures at issue 
'modify the conditions of competition' be tween imported and domestic products in Washington."560  
7.251.   As noted above561, the Washington State additional incentive is provided for customer -
generated electricity produced using solar inverters, solar modules, stirling converters, or wind 
blades manufactured  in Washington  State .  
7.252.   As India argues, and as we have found, Measure  1 provides for an additional incentive by 
applying a higher economic development factor on the incentive base rate when, and to the extent 
that, eligible equipment includes solar inverte rs, solar modules, stirling converters, and wind blades 
manufactured in Washington State.562 Looking at the text, design, and structure of the measure, we 
note that the economic development factors for equipment manufactured in Washington State range 
from 2. 4 to 1, whereas the factor for any equipment used to produce energy by wind, regardless of 
its origin, is 0.8, and no factor is applied on the incentive base rate in case of non -local (including 
imported) solar modules or stirling converters.563 The "fundame ntal thrust and effect"564 of the 
challenged measure is thus to tie the amount of the final incentive payment to the use of certain 
Washington State -origin equipment. The higher the level of local content used, the higher the 
incentive provided.  
7.253.   On this basi s, we consider that India has shown prima facie that the Washington State 
additional incentive modifies the conditions of competition in favour of Washington -made solar 
inverters, solar modules, stirling converters, and wind blades  by creating a financial incentive 
favouring made -in-Washington -State like products .565 We recall in this connection that past cases 
                                                
555 Appellate Body Report, Thailand – Cigarettes (Philippines) , paras.  130 and 134.  
556 India's first written submission, para.  51. See also India's firs t written submission, para.  57. 
557 India's first written submission, para.  55. 
558 India's first written submission, para.  57. 
559 United  States' first written submission, para.  85. 
560 United  States' first written submission, para.  88. 
561 See para. 2.8 above.  
562 See para. 2.8 above.  
563 See para. 2.11 above. Further, we recall that economic development factors can be applied 
cumulatively under certain circumstances. See  para. 2.12 above.  
564 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  215. 
565 The fact that domestic but non -local like products (i.e. like products from areas of the United  States 
other than Washington) are accorded the same treatment as imported products under the measure at issue 
does not affect this conclusion. As the panel in Canada – Wheat Exports and Grain Imports  stated, "where an  
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  have consistently held that the provision of incentives or advantages for the use of domestic over 
imported products accord s less favourable treatment to such imported products.566 
7.254.   As noted, the United States' primary response to India's claim is that, because India has 
failed to show that Measure 1 affects the sale, purchase, transportation or use of the relevant 
products, it fo llows that it has also failed to show that the measure accords treatment less favourable 
to imported than to domestic products.567  
7.255.   We have already found that, because it provides an advantage for the use of domestic 
products but not for the use of imported products, and thus impacts the conditions of competition 
between imported and domestic products, Measure  1 does affect the sale, purchase, transportation, 
distribution or use of the relevant products.568 Moreover, as explained above, in our view the 
question  whether a measure accords treatment less favourable to imported products is distinct from 
the question whether it affects the sale, purchase, transport, distribution or use of such products. It 
follows that the United States' argument  in this regard  is not capable of rebutting India's prima facie  
case that Measure 1 accords less favourable treatment to imported than to domestic products.   
7.256.   We recall  the United  States ' argument , in the context of whether the measure affects the 
sale, purchase, transportation, distribution or use of products,  that the figures provided  by India  do 
not support its assertion that the exponential growth of solar PV systems in Washington State 
between 2005 and 2015 is due, or somehow related, to the provision of the W ashington State 
additional incentive. We  have discussed this evidence above.569 In the context of the claim before 
us, and insofar as th is argument might be relied upon to argue that the measure does not accord 
less favourable treatment , it suffices to recal l that past cases  have consistently held that neither 
evidence of actual market effects nor proof that "the sourcing decisions of private firms have actually 
been impacted by" the measure at issue is necessary to make out a case of less favourable 
treatmen t.570 In the present dispute , the implications of Washington State additional incentive  for 
competitive conditions are explicit from the text, design, and structure of the relevant provisions. 
To use the words of the panel in US – FSC ( Article  21.5 – EC), "[t]he less favourable treatment we 
have found arises by necessary implication from the words actually used in the text" of the measure 
at issue.571 Accordingly, we do not consider that evidence showing that the measure may have had 
minimal or no market effect s in recent years , even if accepted, would be  sufficient to rebut India's 
prima facie  case that the Washington State additional incentive treats non -local products, including 
imported products, less favourably than like local products.  
7.257.   We therefore find that India has shown prima facie , and the United  States  has not rebutted, 
that the Wash ington State additional incentive modifies the conditions of competition to the 
detriment of imported solar inverters, solar modules, stirling converters, and wind blades , and 
therefore accords less favourable treatment to such products within the meaning of Article  III:4 of 
the GATT  1994. 
7.3.4.2   Measure  2: California Manufacturer Adder  
7.258.   India submits that the California Manufacturer Adder accords less favourable treatment to 
imported products than to like domestic products. According to India, by "incentivizing th e use of 
the eligible equipment that meet the in -state manufacturing level" required, the measure at issue 
"den[ies] the effective equality of opportunity to the imported products to compete in the domestic 
                                                
origin -based difference in regulatory treatment is made between products originating in one area, region or 
administrative unit of a country and all other like products – that is, like products or iginating in other areas of 
the same country or originating in foreign countries – Article III:4 requires that the foreign product be granted 
treatment no less favourable than that accorded to the most -favoured domestic product". Panel  Report, 
Canada – Wheat Exports and Grain Imports , para.  6.294 (fn omitted, referring to Panel Report, US – Malt 
Beverages , paras. 5.17 and 5.33).  
566 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  220; Panel Reports, India – Solar Cells , 
para. 7.95; US – COOL , para.  7.358; Mexico – Taxes on Soft Drinks , para.  8.117; US – FSC (Article 21.5 – 
EC), para.  8.156.  
567 United States' first written submission, para. 88.  
568 See para. 7.170  above.  
569 See paras.  7.167  - 7.168  above.  
570 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
571 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
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  market of California".572 India argues that the add itional incentive for the use of eligible equipment 
manufactured in California, provided that either the California Supplier  requirement (under the 2016 
California Self -Generation Incentive Program ( SGIP) Handbook) or the California Manufacturer 
requiremen t (under the 2017 SGIP Handbook) are met, modifies the conditions of competition to 
the detriment of the imported 'like products' because "a potential buyer will prefer to purchase the 
'eligible equipment' satisfying the California Manufacturer or Californ ia Supplier criteria … over those 
which are imported."573 
7.259.   The United  States  responds that, insofar as India has failed to show that the measure at 
issue affects the sale, purchase, transportation, distribution or use of the relevant products , India 
has "cons equently"  failed to show that the measure modifies the conditions of competition to the 
detriment of imported products and thus accords less favourable treatment to such products.574 The 
United  States  adds that India has not provided "evidence  demonstrating that the availability of the 
SGIP Adder otherwise operates to modify the 'conditions of competition' in the market for renewable 
energy equipment in California 'to the determinant [ sic] of imported products.'"575  
7.260.   As explained above576, the California Manufacturer Adder  consists of an additional 20% 
incentive payment for the installation of eligible distributed generation or Advanced Energy Storage 
(AES) technologies "from a California Supplier " (under the 2016 SGIP Handbook) or certain 
gener ation and energy storage equipment "manufactured in California" (under the 2017 SGIP 
Handbook).  
7.261.   As India argues, and as we have found, the measure at issue provides for an additional 
incentive for the installation of certain equipment to the extent that t his equipment is "from a 
California Supplier " or "manufactured in California" .577 Looking at the text, design, and structure of 
the California Manufacturer Adder, we note that the definitions of both "California Supplier" under 
the 2016 SGIP Handbook and "Ca lifornia Manufacturer" under the 2017 SGIP Handbook leave no 
doubt that non -local products, including imported products, will under no circumstances qualify for 
the California Manufacturer Adder , since these definitions contain requirements regard ing the 
location of the manufacturing facility and the residence of its workers, among others.578 In fact, the 
2017 SGIP Handbook  explicitly requires that "at least 50% of the capital equipment value of the 
eligible distributed generation resources must be manufactur ed by an approved 'California 
Manufacturer'".579 Thus, the "fundamental thrust and effect"580 of the  challenged  measure is to tie 
the granting of the additional incentive to the use of equipment manufactured in California.  
7.262.   On this basis, we consider that Indi a has shown prima facie that the California Manufacturer 
Adder modifies the conditions of competition in favour of California -origin581 eligible equipment582 
by creating a financial incentive favo uring products  of California origin .583 In this connection, we 
recall that past cases have consistently held that the provision of incentives or advantages for the 
                                                
572 India's first written submission, para.  172. 
573 India's first written submission, para.  176. 
574 United  States' first written submission, para.  92. 
575 United  States' first written submission, para.  90. 
576 See para. 2.14 above.  
577 See paras.  7.101  - 7.102  above.  
578 See paras.  2.16 - 2.17 above.  
579 2017 SGIP Handbook, p.  25 (Exhibit IND -15). 
580 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  215. 
581 The fact  that domestic but non -local like products (i.e. like products from areas of the United  States 
other than California) are accorded the same treatment as imported products under the measure at issue does 
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports , para.  6.294 
(fn omitted, referring to Panel Report, US – Malt Beverages , paras. 5.17 and 5.33).  
582 Distributed generation or AES technologies from a California Supplier  (under the 2016 SGIP 
Handbook (Exhibit IND-16)) or certain generation and energy storage equipment (under the 2017 SGIP 
Handbook (Exhibit IND-15)). 
583 Distributed generation or AES technologies from a California Supplier  (under the 2016 SGIP 
Handbook (Exhi bit IND -16)) or certain generation and energy storage equipment (under the 2017 SGIP 
Handbook (Exhibit IND -15)). See  para. 2.18 above.  
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  use of domestic over imported products accords less favourable treatment to such imported 
products.584 
7.263.   As noted, the United States' p rimary response to India's claim is that, because India has 
failed to show that Measure 2 affects the sale, purchase, transportation or use of the relevant 
products, it follows that it has also failed to show that the measure accords treatment less favoura ble 
to imported than to domestic products.585  
7.264.   We have already found that, because it provides an advantage for the use of domestic 
products but not for the use of imported products, and thus impacts the conditions of competition 
between imported and domesti c products, Measure  2 does affect the sale, purchase, transportation, 
distribution or use of the relevant products.586 Moreover, as explained above, in our view the 
question whether a measure accords treatment less favourable to imported products is related to, 
but distinct from , the question whether it affects the sale, purchase, transport, distribution or use of 
products. It follows that the United States' argument in this regard  is not capable of rebutting India's 
prima facie  case that Measure 2 accords less favourable treatment to imported than to domestic 
products.  
7.265.   We also recall that , as discussed above, we do not agree with the United  States ' argument, 
made in the context of the affecting standard,  that India should have demonstrated that th e 
California Manufacturer Adder has actually had  the effect of "inducing" buyers to "purchase" the 
relevant  products of California -origin. In the context of the claim before us, and insofar as this 
argument might be relied upon to argue that the measure  does not  accord less favourable treatment, 
it suffices to note that p ast cases have consistently held that neither evidence of actual market 
effects nor proof that "the sourcing decisions of private firms have actually been impacted by" the 
measure at issue is necessary to make out a case of less favourable treatment.587 In our view, t he 
implications of Measure  2 for competitive conditions are explicit from the text, design, and structure 
of the relevant provisions. In this respect, we recall the words of the p anel in US – FSC (Article  21.5 – 
EC), "[t]he less favourable treatment we have found arises by necessary implication from the words 
actually used in the text" of the measure at issue.588 Accordingly, we do not consider that evidence 
showing that the measure may have had minimal or no market effects in recent years , even if 
accepted, would be  sufficient to rebut India's prima facie  case that the California Manufacturer Adder 
treats non -local products, including imported products, less favourably than like loca l products.  
7.266.   We therefore find that India has shown prima facie , and the United  States  has not rebutted, 
that the California Manufacturer Adder modifies the conditions of competition to the detriment of 
imported distributed generation or AES technologies (under the 2016 SGIP Handbook) and certain 
generation and energy storage equipment (under the 2017 SGIP Handbook), and therefore accords 
less fav ourable treatment to such products within the meaning of Article  III:4 of the GATT  1994. 
7.3.4.3   Measure  4: Montana tax incentive  
7.267.   India submits that the Montana tax incentive accords less favourable treatment to imported 
products than to like domestic products "b y offering the tax incentives based on the in -state 
manufacture level of ethanol and, thereby, den[ies] the effective equality of opportunity to the 
imported products to compete in the domestic market of Montana".589 According to India, by giving 
ethanol dis tributors a "direct financial advantage in [the] form of the tax incentive for using the 
domestic product", Measure  4 "alter[s] the conditions of competition in the market in favour of the 
domestic products and final product derived from such use of domest ic product s".590 
                                                
584 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  220; Panel Reports, India – Solar Cells , 
para. 7.95; US – COOL , para.  7.358; Mexico – Taxes on Soft Drinks , para.  8.117; US – FSC (Article 21.5 – 
EC), para.  8.156.  
585 United States' first written submission, para. 92.  
586 See para. 7.176  above.  
587 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
588 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
589 India's first written submis sion, para.  366. 
590 India's first written submission, para.  369. 
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  7.268.   The United  States  responds that, insofar as India has failed to show that Measure  4 affects 
the sale, purchase, transportation, distribution or use of the relevant products, it has "consequently"  
failed to show that th is measure modifies the  conditions of competition to the detriment of imported 
products and thus accords less favourable treatment to such products.591  
7.269.   As explained above592, under Measure  4, a tax incentive is payable to ethanol distributors 
on "ethanol … produced in Montana from Montana agricultural products, including Montana wood or 
wood products".593 The Montana tax incentive does not make provision for a tax incentive on ethanol 
produced outside of Montana.  
7.270.   As India argues, and as we have found, Measure  4 offers a financial incentive to ethanol 
distributors when, and to the extent that, they distil ethanol from Montana -origin ingredients.594 
Looking at the text, design, and structure of the Montana tax incentive, we observe that, ethanol 
distributors are entitled to 20 cents per gallon of ethanol 100 % produced from Montana -origin 
ingredients, "with the amount of th e tax incentive for each gallon reduced proportionately, based on 
the amount of agricultural or wood products not produced in Montana that is used in the production 
of the ethanol".595 Thus, the amount of the financial incentive is inextricably tied to the u se of 
Montana -origin ingredients. The "fundamental thrust and effect"596 of Measure  4 is that higher 
incentives are provided the more local ingredients are used; conversely, the more non -local 
ingredients used by an ethanol distributor, the lower  the financi al incentive to which the distributor 
is entitled.  
7.271.   We do not, however, consider that India has shown that the Montana tax incentive also 
modifies the conditions of competition in favour of domestic ethanol , i.e. the "final product". We do 
not discount the  possibility that an incentive on ingredients may flow through to the final product(s) 
in which such ingredients are used, particularly where such ingredients are required to be used in 
the production of a particular final product in order to benefit from the incentive. Such flow -through 
must, however, at least be argued by the complaining party as part of its burden to adduce 
arguments and to substantiate its assertions.597 India has not done so in the present case; rather, 
it has simply asserted598 that becau se the measure at issue provides a tax -incentive for the use of 
domestic ingredients, both the ingredients and  the final product  are placed in a better competitive 
position .599 In our view, such an assertion, without more detailed explanation  of how the Mont ana 
tax incentive modifies the conditions of competition with respect to the final product , is not sufficient 
to establish the existence of less favourable treatment in regard to the final product.  
7.272.   On this basis, we consider that India has made a prima fac ie case that the Montana tax 
incentive modifies the conditions of competition in favour of Montana -origin ingredients by creating 
a financial incentive favo uring their usage.600 We recall in this connection that past cases have 
consistently found that the pr ovision of incentives or advantages for the use of domestic over 
imported products accord less favourable treatment to such imported products.601 We do not, 
                                                
591 United  States' first written submission, para.  99. 
592 See para. 2.20 above.  
593 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
594 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
595 Montana Annotated Code, Section  15-70-522 (Exhibit IND -34). 
596 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  215. 
597 See Appellate Body Reports, Thailand – Cigarettes (Philippines) , fn 253 and EC – Tariff Preferences , 
para. 105. We also recall the Appellate Body's statement in US – Wool Shirts and Blouses  that it would be 
"difficult, indeed, to see how any system of judicial settlement could work if it incorporated the proposition that 
the mere assertion of a claim might amount to proof." Appell ate Body Report, US – Wool Shirts and Blouses , 
p. 14. 
598 Appellate Body Report, Thailand – Cigarettes (Philippines) , para.  130. 
599 India's first written submission, para.  369. 
600 The fact that domestic but non -local like products (i.e. like products from area s of the United  States 
other than Montana) are accorded the same treatment as imported products under the measure at issue does 
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports , para.  6.294 
(fn omitted, referring to Pa nel Report, US – Malt Beverages , paras. 5.17 and 5.33).  
601 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  220; Panel Reports, India – Solar Cells , 
para. 7.95; US – COOL , para.  7.358; Mexico – Taxes on Soft Drinks , para.  8.117; US – FSC (Article 21.5 – 
EC), para.  8.156.  
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  however, find that India has made a prima facie  case that the measure also modifies the conditions 
of competition in favour of ethanol  (i.e. the final product)  made from such local ingredients.  
7.273.   As noted, the United States' primary response to India's claim is that, because India has 
failed to show that  Measure 4 affects the sale, purchase, transportation or use of the relevant 
products, it follows that it has also failed to show that the measure accords treatment less favourable 
to imported than to domestic products.602  
7.274.   We have already found that, becaus e it provides an advantage for the use of domestic 
products but not for the use of imported products, and thus impacts the conditions of competition 
between imported and domestic products, Measure  4 does affect the sale, purchase, transportation, 
distribut ion or use of the relevant products.603 Moreover, as explained above, in our view the 
question whether a measure accords treatment less favourable to imported products is related to , 
but distinct from , the question whether it affects the sale, purchase, tran sport, distribution or use of 
products. It follows that the United States' argument  in this regard  is not capable of rebutting India's 
prima facie  case that Measure 4 accords less favourable treatment to imported than to domestic 
products.  
7.275.   Finally, w e recall the United  States ' argument , in the context of whether Measure 4 affects 
the sale, purchase, transportation, distribution or use of products, that the evidence on the record 
shows that no incentive has been paid under the measure since 1995.604 We have d iscussed this 
evidence above. In the context of the claim before us,  and insofar as th is argument might be relied 
upon to argue that the measure  does not  accord less favourable treatment, it suffices to recall that 
past cases have consistently held that neither evidence of actual market effects nor proof that "the 
sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary 
to make out a case of less favourable treatment.605 Here, the measure's implications for competitive 
conditions are explicit from the text, design, and structure of the relevant provisions. To use the 
words of the panel in US – FSC ( Article  21.5 – EC), "[t]he less favourable treatment we have found 
arises by necessary implication from the word s actually used in the text" of the measure at issue.606 
Accordingly, we do not consider that evidence showing that Measure  4 may have had minimal or no 
market effects in recent years , even if accepted, would be  sufficient to rebut India's prima facie  case 
that the Montana tax incentive treats non -local products, including imported products, less 
favourably than like local products.  
7.276.   For the foregoing reasons, we find that India has shown prima facie , and the United  States  
has not rebutted, that the Montana ta x incentive modifies the conditions of competition to the 
detriment of imported  ethanol ingredients. However, we do not consider that India has shown prima 
facie that the Montana tax incentive modifies the conditions of competition to the detriment of 
ethanol made from imported  ingredients. Ultimately, though, having found that India has shown 
prima facie that the Montana tax incentive modifies the conditions of competition to the detriment 
of one of the two like imported products identified by India, we co nclude that India has shown, and 
the United  States  has not rebutted, that the Montana tax incentive accords less favourable treatment 
to imported products, within the meaning of Article  III:4 of the GATT  1994. 
7.3.4.4   Measure  5: Montana tax credit  
7.277.   India submits that, under the Montana tax credit, "the tax credit is available only where … 
biodiesel has been manufactured from Montana produced feedstock".607 According to India, this "tax 
credit would play a decisive role in the choice that the consumer makes b etween domestic and 
imported products".608 In India's view, "insofar as the tax credit is contingent on the use of Montana 
produced feedstock it alters the conditions of competition of such feedstock".609 Specifically, India 
submits that "[t]he provision of th e incentive would necessarily alter the competitive environment 
                                                
602 United States' first written submission, para. 99.  
603 See para. 7.184  above.  
604 United  States' first written submission, para.  16. 
605 Panel Rep ort, US – FSC (Article 21.5 – EC), para.  8.159.  
606 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
607 India's first written submission, para.  468. 
608 India's first written submission, para.  468. 
609 India's first written submission, para.  469. 
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  as any biodiesel producer would, in order to get the benefit of the refund, use feedstock produced 
in Montana to produce biodiesel".610 Moreover, according to India, "[e]ven if the biodiesel pro ducer 
is not eligible for such incentive, on account of the tax credit, any person who is eligible for the tax 
credit would prefer to buy biodiesel produced entirely from Montana produced feedstock".611 India 
concludes that "[t]his impl[es] that a greater de mand is created, by way of the incentive offered, 
for both (a) Montana produced feedstock and (b) biodiesel produced from Montana produced 
feedstock".612 
7.278.   The United  States  responds that, insofar as India has failed to show that Measure  5 affects 
the sale, pu rchase, transportation, distribution or use  of products, it follows "by the same token" 
India has also failed to show that the measure modifies the conditions of competition to the detriment 
of imported products and thus accords less favourable treatment t o such products.613 
7.279.   As explained above614, the Montana tax credit for biodiesel blending and storage provides 
for "special fuel distributors" and "owners or operators of a motor fuel outlet" to receive a "credit 
against [certain] taxes … for the costs of inves tments in depreciable property used for storing or 
blending biodiesel with petroleum diesel for sale".615 This incentive is only available if the investment 
for which the credit is claimed is "used primarily to blend petroleum diesel with biodiesel made 
entirely from Montana -produced feedstocks".616  
7.280.   As India has argued, and as we have found, the Montana tax credit for biodiesel blending 
and storage conditions the availability of a tax incentive on the use of local products. Looking at the 
text, design, and str ucture of the Montana tax credit, we note that tax -payers who blend petroleum 
diesel with biodiesel made entirely from Montana -produced feedstocks are entitled to the credit, 
whereas tax -payers who blend petroleum diesel with biodiesel made wholly or partl y from feedstocks 
originating outside Montana are not so eligible. We agree with India that by offering a financial 
benefit for the use of local feedstock, the "fundamental thrust and effect"617 of Measure  5 is to induce 
or incentivize blenders to use Montan a-origin feedstock rather than feedstock from outside of 
Montana , including from other Members.  
7.281.   We also agree with India that Measure  5 modifies the conditions of competition in respect of 
biodiesel blended from Montana -origin feedstock. Looking again at t he text, design, and structure 
of the measure, we note that it offers a tax incentive on property used not only to blend biodiesel, 
but also to store biodiesel blended from Montana -origin feedstock. This means that persons or 
enterprises who store biodiese l produced from Montana -origin feedstock receive the incentive, 
whereas those who store biodiesel made from feedstock produced outside Montana do not. In our 
view, this suggests  that the "fundamental thrust and effect"618 of Measure  5 is to create a commerci al 
incentive to purchase and store biodiesel made from Montana -origin ingredients.  
7.282.   On this basis, we consider that India has shown prima facie that the Montana tax credit 
modifies the conditions of competition in favour of Montana -origin ingredients and biodiesel blended 
therefrom by creating a financial incentive favo uring their usage.619 We note in this connection that 
past cases have consistently found that the provision of incentives or advantages for the use of 
domestic over imported pr oducts accord less favourable treatment to such imported products.620 
                                                
610 India's first written submission, para.  469. 
611 India's first written submission, para.  469. 
612 India's first written submission, para.  469. 
613 United  States' first written submission, para.  101. 
614 See para. 2.24 above.  
615 Montana Annotated Code, Section  15-32-703(1) (Exhibit US -11). 
616 Montana Annotated Code, Section  15-32-703(4)(a) (Exhibit US -11). 
617 Appellate Body Report , US – FSC (Article 21.5 – EC), para.  215. 
618 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  215. 
619 The fact that domestic but non -local like products (i.e. like products from areas of the United  States 
other than Montana) are accorded the same treatment as imported products under the measure at issue does 
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports , para.  6.294 
(fn omitted, referring to Panel Report, US – Malt Beverages , paras. 5.17 and 5.33).  
620 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  220; Panel Reports, India – Solar Cells , 
para. 7.95; US – COOL , para.  7.358; Mexico – Taxes on Soft Drinks , para.  8.117; US – FSC (Article 21.5 – 
EC), para.  8.156.  
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  7.283.   As noted, the United States' primary response to India's claim is that, because India has 
failed to show that Measure 5 affects the sale, purchase, transportation or use of the relevant 
products, it follows that it has also failed to show that the measure accords treatment less favourable 
to imported than to domestic products.621  
7.284.   We have already found that, because it provides an advantage for the use of domestic 
products but not for the use  of imported products, and thus impacts the conditions of competition 
between imported and domestic products, Measure  5 does affect the sale, purchase, transportation, 
distribution or use of the relevant products.622 Moreover, as explained above, in our view  the 
question whether a measure accords treatment less favourable to imported products is related to , 
but distinct from , the question whether it affects the sale, purchase, transport, distribution or use of 
products. It follows that the United States' argu ment in this regard  is not capable of rebutting India's 
prima facie  case that Measure 5 accords less favourable treatment to imported than to domestic 
products.  
7.285.   Finally, w e recall the United  States ' argument , in the context of whether Measure 5 affects 
the sale, purchase, transportation, distribution or use of products,  that the evidence on the record 
shows that no incentive has been paid under Measure  5 since 1995.623 We have discussed this 
evidence above. In the context of the claim before us,  and insofar as th is argument might be relied 
upon to argue that the measure  does not  accord less favourable treatment , it suffices to recall that 
past cases have consistently held that neither evidence of actual market effects nor proof that "the 
sourcing  decisions of private firms have actually been impacted by" the measure at issue is necessary 
to make out a case of less favourable treatment.624 Here, the measure's implications for competitive 
conditions are explicit from text, design, and structure of the  relevant legislation. To use the words 
of the panel in US – FSC ( Article  21.5 – EC), "[t]he less favourable treatment we have found arises 
by necessary implication from the words actually used in the text" of the measure at issue.625 
Accordingly, we do not consider that evidence showing that Measure  5 has may have had minimal 
or no market effects in recent years , even if accepted, would be  sufficient to rebut India's prima 
facie case that the Montana tax credit treats non -local products, including imported p roducts, less 
favourably than like local products.  
7.286.   We therefore find that India has shown prima facie , and the United  States  has not rebutted, 
that the Montana tax credit modifies the conditions of competition to the detriment of imported  
feedstock and bio diesel produced therefrom, and therefore accords less favourable treatment to 
such products within the meaning of Article  III:4 of the GATT  1994. 
7.3.4.5   Measure  6: Montana tax refund  
7.287.   India argues that because the Montana tax refund "is contingent upon the use of Montana 
produced ingredients it alters the conditions of competition for the said ingredients".626 According to 
India, "[t]he provision of the incentive would necessarily alter the conditions of competition 
environment as any biodiesel producer would, in order to get [the] benefit of the refund, use 
ingredients produced in Montana to produce biodiesel". India argues that this creates "a greater 
demand … by way of the incentive offered in the upstream market, for Montana produced 
ingredients".627 India furthe r submits that Measure  6 "also alters the conditions of competition in the 
market in favour of biodiesel produced from ingredients produced in Montana domestic product 
[sic]". This is so, in India's view, because "[t]he availability of a tax refund for bio diesel manufactured 
from Montana products would imply that distributors/importers/retailers would prefer to use 
biodiesel produced using Montana produced ingredients". India concludes that Measure  6 therefore 
accords less favourable treatment to imported t han to domestic products  within the meaning of  
Article  III:4 of the GATT  1994.628 
                                                
621 United States' first written submission, para. 101.  
622 See para. 7.191  above.  
623 United  States' first written submission, para.  16. 
624 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
625 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
626 India's first written submission, para.  568. 
627 India's first written submission, para.  568. 
628 India's first written submission, para.  569. 
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  7.288.   The United  States  responds that, insofar as India has failed to show that Measure  6 affects 
the sale, purchase, transportation, distribution or us e of the relevant products , it has "consequently" 
failed to show that Measure  6 modifies the conditions of competition to the detriment of imported 
products and thus accords less favourable treatment to such products.629 
7.289.   As explained above630, under the Montana tax refund , licensed distrib utors receive a refund 
equal to two cents per gallon on the sale of biodiesel produced entirely from biodiesel ingredients 
produced in Montana. Measure  6 also provides for owners and operators of retail motor fuel outlets 
to receive a tax refund equal to o ne cent per gallon on biodiesel purchased from a licensed distributor 
if the biodiesel is produced entirely from biodiesel ingredients produced in Montana.   
7.290.   We find convincing India's submission that the Montana tax refund accords less favourable 
treatment to non -local, including imported , products. Looking at the text, design, and structure of 
Measure  6, we note that it ties the provision of a tax refund to the use of local products. The refund 
is payable only for transactions involving  the sale or purchase of biodiesel produced entirely from 
Montana -origin ingredients. By offering a financial benefit to licensed distributors who sell biodiesel 
made entirely from Montana -origin ingredients, the "fundamental thrust and effect"631 of Measure  6 
is to stimulate increased demand for the Montana -origin ingredients that must be used for the 
biodiesel to be eligible for the refund. Conversely, Measure  6 reduces demand for non -Montana -
origin ingredients, use of which renders biodiesel ineligible for  the tax refund.  
7.291.   Additionally , the Montana tax refund  incentiv izes motor fuel retailers to purchase biodiesel 
made from local ingredients by offering them a refund of one cent per gallon on biodiesel made from 
Montana -origin ingredients, which refund is n ot available on purchases of biodiesel made wholly or 
partly from non -Montana -origin ingredients.  The Montana tax refund  thereby  strengthen s the 
competitive position of such biodiesel over other biodiesels made wholly or partly from non -Montana -
origin ingr edients.  
7.292.   We therefore consider that India has made a prima facie  case that the Montana tax refund 
accords treatment less favourable  to imported products  than to local products.632 We note that this 
finding is consistent with the numerous past cases that hav e found that the provision of incentives 
or advantages for the use of domestic over imported products accord less favourable treatment to 
such imported products.633 
7.293.   As noted, the United States' primary response to India's claim  is that, because India has 
failed to show that Measure 6 affects the sale, purchase, transportation or use of the relevant 
products, it follows that it has also failed to show that the measure accords treatment less favourable 
to imported than to domestic products.634  
7.294.   We have already found that, because it provides an advantage for the use of domestic 
products but not for the use of imported products, and thus impacts the conditions of competition 
between imported and domestic products, Measure  6 does affect the sale, pu rchase, transportation, 
distribution or use of the relevant products.635 Moreover, as explained above, in our view the 
question whether a measure accords treatment less favourable to imported products is related to , 
but distinct from , the question whether it  affects the sale, purchase, transport, distribution or use of 
products. It follows that the United States' argument  in this regard  is not capable of rebutting India's 
prima facie  case that Measure 6 accords less favourable treatment to imported than to do mestic 
products.  
                                                
629 United  States' first written submission, para.  103. 
630 See paras. 2.28 - 2.30 above.  
631 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215. 
632 The fact that domestic but non -local like products (i.e. like products from areas of  the United  States 
other than Montana) are accorded the same treatment as imported products under the measure at issue does 
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports , para.  6.294 
(fn omitted, referring to Panel Report, US – Malt Beverages , paras. 5.17 and 5.33).  
633 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  220; Panel Reports, India – Solar Cells , 
para. 7.95; US – COOL , para.  7.358; Mexico – Taxes on Soft Drinks , para.  8.117; US – FSC (Article 21.5  – 
EC), para.  8.156.  
634 United States' first written submission, para. 103.  
635 See para. 7.198  above.  
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  7.295.   Finally, we recall the United  States ' argument , in the context of whether Measure 6 affects 
the sale, purchase, transportation, distribution or use of products, that the evidence on the record 
shows that no incentive has been paid under th e measure at issue since 2011.636 We have discussed 
this evidence above. In the context of the claim before us,  and insofar as th is argument might be  
relied upon to argue that the measure  does not  accord  less favourable treatment , it suffices to recall 
that past cases have consistently held that neither evidence of actual market effects nor proof that 
"the sourcing decisions of private firms have actually been impacted by" the measure at issue is 
necessary to make out a case of les s favourable treatment.637 Here, the measure's implications for 
competitive conditions are explicit from the text, design, and structure of the relevant legislation. 
To use the words of the panel in US – FSC ( Article  21.5 – EC), "[t]he less favourable treatm ent we 
have found arises by necessary implication from the words actually used in the text" of the measure 
at issue.638 Accordingly, we do not consider that evidence showing that Measure  6 may have had 
minimal or no market effects in recent years , even if ac cepted, would be  sufficient to rebut India's 
prima facie  case that the Montana tax refund treats non -local products, including imported products, 
less favourably than like local products.  
7.296.   We therefore find that India has shown prima facie , and the United  States has not rebutted, 
that the Montana tax refund modifies the conditions of competition to the detriment of imported  
ingredients and biodiesel produced therefrom, and therefore accords less favourable treatment to 
such products within the meaning of Article III:4 of the GATT  1994. 
7.3.4.6   Measure  7: Connecticut additional incentive  
7.297.   Regarding  the Connecticut additional incentive, India submits that, because of the high costs 
associated with the installation of solar photovoltaic ( PV) modules and solar thermal systems, "any 
form of incentive would play a decisive role in the choice that the consumer makes between domestic 
and import ed products". Thus, according to India, "[t]he provision of additional incentives 
necessarily alters the competitive environment as any consumer would want to reduce its costs by 
installing the products that are eligible for the additional incentives".639 India concludes that because 
Measure  7 "provid[es] additional incentives for the use of Connecticut -origin product[s], it alters the 
conditions of competition in the market in favour of the domestic product", and "[t]his alteration … 
is to the detriment of …  imported 'like products'".640 
7.298.   The United  States  responds that, insofar as India has failed to show that Measure  7 affects 
the sale, purchase, transportation, distribution or us e of the relevant products , it follows "by 
definition" that it has also failed to  show that Measure  7 modifies the conditions of competition to 
the detriment of imported products and thus accords less favourable treatment to such products.641 
The United  States  adds that India, in the context of  the alleged additional incentive, has argue d that 
"any incentive would play a decisive role in" consumer choice, whereas what India needed to show 
was that the " particular CRSIP [Connecticut Residential Solar Investment Program] measures" have 
done so. According to the United  States , India's failure to refer to the specific challenged measure 
in its arguments means that India has not provided "a particularized analysis of [ Measure  7's] 
expected operation before summarily inferring  that [it] play[s] a decisive role in incentivizing 
purchase or use of products made in the state of Connecticut".642 
7.299.   In response to the United  States ' argument concerning India's reference to " any incentive", 
India, in response to a question from the Panel,  submitted that:  
The reference to the phrase "any form of incentive" needs to be read in the context 
which has it has been used. The context, of course, is the additional incentives offered 
under the challenged measures. In fact, in the very next sentence,  India refers to the 
                                                
636 United  States' first written submission, para.  16. 
637 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
638 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
639 India's first written submission, para.  679. 
640 India's first written submission, par a. 680. 
641 United  States' first written submission, para.  112. 
642 United  States' second written submission, para.  9 (emphasis  original, fns  omitted).  
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  additional incentives under the challenged measures at issue. The claim that India has 
not offered particularised analysis of the CRSIP measures, therefore, is baseless.643 
7.300.   As explained above644, the Connecticut additional incentive is a p art of the CRSIP, which 
provides financial incentives to homeowners who install solar PV or solar thermal systems on their 
properties.645 Specifically, the Connecticut additional incentive provides that an additional incentive 
of up to 5% of the ordinarily a vailable incentive may be made available for the use of "major system 
components manufactured or assembled in Connecticut"646, and another additional incentive of up 
to 5% of the ordinarily available incentive may be made available "for the use of major syst em 
components manufactured or assembled in a distressed municipality … or a targeted investment 
community".647 Nothing in the relevant legislation either requires the installation of systems whose 
"major system components" are locally  manufactured or prevent s the installation of systems whose 
"major system components" are not locally  manufactured. Homeowners who install such systems 
are eligible to receive the base incentives provided for in the CRSIP. However, such homeowners 
are not eligible to receive the additional incentive, which may be up to 5% of the CRSIP base 
incentive payable to all homeowners who install solar PV or solar thermal systems.648  
7.301.   We are convinced by India's submission that the Connecticut additional incentive accords 
less favourable trea tment to non -local products, including imported products. Looking at its text, 
design, and structure, we observe that Measure  7 establishes a system under which homeowners 
who choose to install solar PV or solar thermal systems made from locally  produced c omponents 
receive a larger refund than those who decide to install systems made from non -local major system 
components. We agree with India that, by providing a larger refund for the installation of systems 
made with locally  produced components, the "funda mental thrust and effect"649 of Measure  7 is to 
stimulate demand for systems made from locally  produced components, as opposed to systems 
made with components produced elsewhere. This in turn strengthens the competitive position of 
such components over components produced outside of Connecticut.  
7.302.   In our view, therefore, India has established prima f acie that the Connecticut additional 
incentive modifies the conditions of competition to the detriment of such imported  components.650 
We note in this connection that this finding is consistent with the many past cases that have held 
that the provision of in centives or advantages for the use of domestic over imported products accord 
less favourable treatment to such imported products.651 
7.303.   We do not agree with the United  States ' argument that India has failed to provide a 
sufficiently particularized analysis of Measure  7. Contrary to the United  States ' suggestion, India's 
first written submission is not concerned with incentives in the abstract. Rather, paragraphs 679 and 
680 of India's first written submission clearly explain why, in India's view, the Connecticut  additional 
incentive modifies the conditions of competition to the detriment of  non-local products, including 
imported  products. Paragraph 679 begins by noting the high cost of installing solar PV and solar 
thermal systems. It  then states that, in light o f such costs, any incentive that lowered such cost 
would play a key role in a consumer 's decision whether and which system to install. Finally, it focuses 
on Measure  7, arguing that, because the provision of a financial incentive that lowers the costs of 
certain solar PV or solar thermal systems would create an incentive in favour of those systems, it 
follows that the Connecticut additional incentive, which provides a bigger refund to homeowners 
who install systems made from local components than to those w ho install systems made from 
                                                
643 India's response to Panel question No. 118, para.  42. 
644 See para. 2.32 - 2.35 above.  
645 General Statutes of Connecticut, Section  16-245ff(c) (Exhibit IND -124).  
646 As noted, the term "major system components" is not defined in the relevant legal instruments.  
647 Connecticut General Statutes, Section  16-245ff(i) (Exhibit IND -124).  
648 We recall tha t we have  found that the Connecticut additional incentive is mandatory, in the sense 
that the Connecticut Public Utilities Regulatory Authority (PURA) is required  to set an additional incentive of 
more than 0% and no higher than 5% if certain requirements are met. See  para. 7.209  above.  
649 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  215. 
650 The fact that domestic but non -local like products (i.e. like products from areas of the United  States 
other than Connecticut) are accorded the same treatment as imported products under the measure at issue 
does not affect this conclusion. See Panel Repor t, Canada – Wheat Exports and Grain Imports , para.  6.294 
(fn omitted, referring to Panel Report, US – Malt Beverages , paras. 5.17 and 5.33).  
651 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  220; Panel Reports, India – Solar Cells , 
para. 7.95; US – COOL , para.  7.358; Mexico – Taxes on Soft Drinks , para.  8.117; US – FSC (Article 21.5 – 
EC), para.  8.156.  
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  non-local components, creates a greater  incentive in favour of such systems, thereby modifying the 
conditions of competition in their favour.652 In other words, India explains that, in the costly field of 
solar PV and solar therm al systems, cheaper systems will be more competitive; by providing 
additional  refunds for the purchase of systems made with local components, the Connecticut 
additional incentive modifies the conditions of competition in favour of such systems.  
7.304.   In our view , the case as set out by India in paragraphs 679 and 680 of its first written 
submission is therefo re sufficiently detailed and particularized to raise a prima facie  case that the 
Connecticut additional incentive accords less favourable treatment to imported  products .  
7.305.   This brings us to the United  States ' other argument, which is that, because India has not 
shown that the measure affects the sale, purchase, transporta tion, distribution  or use  of products, 
it consequentially cannot accord products less favourable treatment.   
7.306.   We have already found that, because it provides an advantage for the use of domestic 
products but not for the use of imported products, and thus im pacts the conditions of competition 
between imported and domestic products, Measure  7 does affect the sale, purchase, transportation, 
distribution or use of the relevant products.653 Moreover, as explained above, in our view the 
question whether a measure ac cords treatment less favourable to imported products is related to , 
but distinct from , the question whether it affects the sale, purchase, transport, distribution or use of 
products. It follows that the United States' argument  in this regard  is not capable  of rebutting India's 
prima facie  case that Measure 7 accords less favourable treatment to imported than to domestic 
products.  
7.307.   Finally, w e recall the United States' argument , in the context of whether Measure 7 affects 
the sale, purchase, transportation, distribution or use of products,  that data submitted by India do 
not establish that any additional incentive payments have been made.  Insofar as this argument 
might be relied upon to argue that the measure  does not  accord less favourable tr eatment , we note 
that past cases have consistently held that neither evidence of actual market effects nor proof that 
"the sourcing decisions of private firms have actually been impacted by" the measure at issue is 
necessary to make out a case of less favo urable treatment.654 Here, the implications of Measure  7 
for competitive conditions are explicit from the text, design, and structure of the relevant legislation. 
To use the words of the panel in US – FSC ( Article  21.5 – EC), "[t]he less favourable treatment  we 
have found arises by necessary implication from the words actually used in the text" of Measure  7.655 
Accordingly, we do not consider that evidence showing that Measure  7 may have had minimal or no 
market effects in recent years , even if accepted, would be sufficient to rebut India's prima facie  case 
that the Connecticut additional incentive treats non -local products, including imported products, less 
favourably than like local products.  
7.308.   We therefore find that India has shown prima facie , and the United  States has not rebutted,  
that the Connecticut additional incentive modifies  the conditions of competition to the detriment of 
imported  major system components of solar PV and solar thermal systems, and the systems made 
with such components, and therefore accords less favourable treatment to such products within the 
meaning of Article  III:4 of the GATT  1994. 
7.3.4.7   Measure  8: Michigan Equipment Multiplier / Michigan Labour Multiplier  
7.309.   India submits that, under the Michigan Equipment and Michigan Labour Multipliers, "only 
those renewable energy systems that meet the statutorily prescribed level of in -state manufacturing 
are eligible for the additio nal incentives".656 In India's view, this means that "the relevant imported 
products do not get the equality of opportunity  to compete on the domestic market of Michigan".657 
According to India, "[s]ince [] the buyers are induced to purchase renewable energy s ystem[s] of 
Michigan origin, the 'like' imported products, which are negated the equality of competition , become 
                                                
652 India's first written submission, paras.  679 and 680.  
653 See para. 7.198  above.  
654 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
655 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
656 India's first written submission, para.  782. 
657 India's first written submission, para.  782 (emphasis  original).  
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  undesirable in the eyes of a potential buyer".658 India concludes that such imported products are 
therefore accorded less favourable treatment.  
7.310.   The United  States  responds that, insofar as India has failed to show that Measure  8 affects 
the sale, purchase, transportation, distribution or us e of the relevant products , it has "consequently"  
also failed to show that the measure modifies the conditions of competition to the detriment of 
imported products and thus accords less favourable treatment to such products.659 Moreover, the 
United  States  submits that India has failed to "provide any analysis as to why [ Measure  8] would 
result in buyers being 'induced to purchase' equipment made in Michigan or cause imported products 
to become 'undesirable'". In the United  States ' view, "India simply assumes in passing … that 
[Measure  8] will incentivize the purchase of locally ma nufactured equipment on the Michigan 
market".660 
7.311.   In response to the United  States ' argument that it has failed to explain how Measure  8 would 
modify the conditions of competition to the detriment of imported products, India submitted that, in 
its first writt en submission, it "explained the discriminatory element of the challenged measure[,] 
i.e. incentives that are offered once the in -state level of manufacturing criterion is met". In India's 
view, "[t]his … denies the equality of opportunity to the like impo rted products and that is sufficient 
for proving less favourable treatment".661 
7.312.   As explained above662, the Michigan Equipment and Michigan Labour Multipliers are part of 
a broader set of rules and regulations called " Renewable Energy Standards Program in the S tate of 
Michigan" (RESPM). Inter alia , the RESPM requires electricity providers to maintain a portfolio of 
renewable energy credits  (RECs)  that can be collected either by generating or purchasing renewable 
energy.663 The Multipliers at issue provide that ele ctricity providers are eligible to receive an extra 
1/10 REC (over and above the RECs ordinarily allotted for generation or purchase of renewable 
electricity) for every megawatt hour of electricity generated ( i) from a renewable energy system 
constructed u sing equipment made in Michigan664, or ( ii) from a renewable energy system 
constructed using a workforce composed of residents of Michigan.665  
7.313.   In our view, India has convincingly shown that both the Michigan Equipment and Michigan 
Labour Multipliers accord le ss favourable treatment to imported products. Looking at the text, 
design, and structure of the Multipliers, we note that both program s give electricity providers who 
generate electricity using systems made from local equipment or by local workforce, or who purchase 
electricity so generated, an extra 1/10 REC per kilowatt hour of electricity. This means that providers 
who generate or purc hase such electricity will more easily be able to satisfy the regulatory 
requirements concerning the collection of RECs. In the context of a regulatory system requir ing 
electricity providers to obtain a certain number of credits per year, the possibility o f obtaining extra 
credits without having to produce or purchase additional energy is a clear  incentive favouring the 
use of renewable energy systems containing local inputs or constructed using local workforce. 
Accordingly, the "fundamental thrust and effe ct"666 of the Multipliers is to promote the purchase of 
renewable energy systems made with local components or constructed using local labour.  
7.314.   We thus consider that India has shown prima facie  that the Multipliers under Measure  8 
incentivize the purchase of renewable energy systems made with local components or constructed 
                                                
658 India's first written submission, para.  782. 
659 United  States' first written submission, para.  118. 
660 United  States' second written submission, para.  10. 
661 India's response to Panel question No. 118, para.  42. 
662 See para. 2.40 above.  
663 Michigan Public Act No. 295, Section  39(1) (Exhibit IND -43). 
664 Michigan Public Act No. 295, Section  39(2)(d) (Exhibit IND -43). This additional credit is only 
available for the first thre e years after the renewable energy system first produces electricity on a commercial 
basis.  
665 Michigan Public Act No. 295, Section  39(2)(e) (Exhibit IND -43). This additional credit is only 
available for the first three years after the renewable energy syst em first produces electricity on a commercial 
basis.  
666 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  215. 
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  using local labour, and therefore modify the conditions of competition in their favour, and to the 
detriment of like imported  products .667 
7.315.   In this connection, we do not agree with the United  States  that India's arguments concerning 
the Michigan Equipment and Michigan Labour Multipliers lack analysis or are based on presumptions. 
Paragraphs 735 -749 of India's first written submission contain a detailed explanation of the 
Multipliers , explaining  both their regulatory context and expected and historical operation. 
India supports its description of the Multipliers by explaining how they have influenced the sourcing 
decisions of one particular Michigan electricity provider.668 India then proceeds to e laborate its legal 
arguments, including those cited earlier in this section.669 Those legal arguments draw on , and are 
supported by , the factual argumentation contained in paragraphs 735-749. Reading these two 
sections of India's submission together , we cons ider that India has sufficiently explained both the 
factual and legal bases of its claim against these Multipliers . Specifically, we consider that India has 
explained why the Multipliers "would result in purchasers being 'induced to purchase' renewable 
energy systems containing local components or constructed using local workforce"670 – as noted in 
the previous paragraph, this is because the availability of extra RECs  is a clear incentive in the 
context of a regulatory system requiring that elect ricity providers obtain a certain number of RECs 
per year. In our view, this analysis emerges clearly from India's submission when all the relevant 
parts of that document are read as a whole, and not in an unduly isolated or fragmented manner, 
as, for exam ple, by reading one subsection without reference to other related subsections.  
7.316.   We now turn to the United  States ' other argument, namely  that, because India has not 
shown that Measure  8 affects the sale, purchase, transportation, distribution or use of the relevant  
products, it consequentially cannot accord imported products less favourable treatment.671  
7.317.   We have already found that, because it provides an advantage for the use of domestic 
products but not for the use of imported products, and thus impacts the conditions of competition 
between imported and domestic products, Measure  8 does affect the sale, p urchase, transportation, 
distribution or use of the relevant products.672 Moreover, as explained above, in our view the 
question whether a measure accords treatment less favourable to imported products is related to , 
but distinct from , the question whether i t affects the sale, purchase, transport, distribution or use of 
products. It follows that the United States' argument in this regard is not capable of rebutting India's 
prima facie  case that Measure 8 accords less favourable treatment to imported than to d omestic 
products.  
7.318.   Finally, we recall the United States' argument , in the context of whether Measure 8 affects 
the sale, purchase, transportation, distribution or use of products, that evidence on the record shows 
that only a miniscule number of credits generated under  the RESPM have been issued pursuant to 
the Michigan Equipment Multiplier. W e discussed the evidence above .673 In the context of the claim 
before us , and insofar as this argument might be relied upon to argue that the measure does not 
accord less favourable treatment , it suffices to recall that past cases have consistently held that 
neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have 
actually been impacted by" the measure at issue is ne cessary to make out a case of less favourable 
treatment.674 Here, the implications of Measure  8 for competitive conditions are explicit from the 
text, design, and structure of the relevant legislation. To use the words of the panel in US – FSC 
(Article  21.5 – EC), "[t]he less favourable treatment we have found arises by necessary implication 
from the words actually used in the text" of the measure at issue.675 Accordingly, we do not consider 
that evidence showing that Measure  8 may have had minimal or no market  effects in recent years 
is sufficient to rebut India's prima facie  case that Michigan Equipment and the Michigan Labour 
                                                
667 The fact that domestic but non -local like products (i.e. like products from areas of the United  States 
other than Michigan) are accorde d the same treatment as imported products under the measure at issue does 
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports , para.  6.294 
(fn omitted, referring to Panel Report, US – Malt Beverages , paras. 5.17 and 5.33).  
668 India's first written submission, paras.  745-746. 
669 See para. 7.309  above.  
670 United  States' second written submission, para.  10. 
671 India's first written submis sion, para. 118.  
672 See para. 7.220  above.  
673 See para. 7.218  above.  
674 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
675 Panel Repor t, US – FSC (Article 21.5 – EC), para.  8.159.  WT/DS510/R  
 
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  Multipliers treat non -local products, including imported products, less favourably than like local 
products.  
7.319.   We therefore find that Ind ia has shown prima facie , and the United  States  has not rebutted, 
that the Michigan Equipment and Michigan Labour Multipliers modify  the conditions of competition 
to the detriment of renewable energy systems made from imported components,  or constructed 
using non -local labour. The se Multipliers therefore accord less favourable treatment to such products 
within the meaning of Article  III:4 of the GATT  1994. 
7.3.4.8   Measure  9: Delaware Equipment Bonus / Delaware Workforce Bonus  
7.320.   India submits that the D elaware Equipment Bonus and the Delaware Workforce Bonus accord 
less favourable treatment to imported products than to like domestic products "by offering the 
additional incentives based on the in -state manufacture level of the specified renewable energy 
equipment".676 According to India, this "den[ies] the effective equality of opportunity to the imported 
products to compete in the domestic market of Delaware".677 India argues that "a potential buyer 
will prefer to purchase the specified products satisfying th e in-state manufacture level than those 
which are imported" because of the additional incentive, thereby modifying "the conditions of 
competition to the detriment of the imported products and in favour of the 'like products' of 
Delaware -origin" .678 
7.321.   The Unite d States  responds that, insofar as India has failed to show that Measure  9 affects 
the sale, purchase, transportation, distribution or us e of the relevant  products, it follows that India 
has "likewise" failed to show that Measure  9 modifies the conditions of competition to the detriment 
of imported products and thus accords less favourable treatment to such products.679  
7.322.   As explained above680, the Delaware Equipment Bonus and the Delaware Workforce Bonus 
consist of an additional 10% credit towards meeting the r enewable energy portfolio standards for 
solar or wind energy installations, provided that a minimum of 50% of the cost of renewable energy 
equipment, inclusive of mounting components, are manufactured in Delaware, or that the facility is 
constructed or ins talled with a minimum of 75% in -state workforce .  
7.323.   We find compelling India's argument that the Delaware Equipment and Workforce Bonuses 
accord less favourable treatment to non -local products, including imported products. Looking at the 
text, design, and st ructure of the Equipment and Workforce Bonuses, we note that both program s 
give retail electricity suppliers an additional 10% credit towards meeting the renewable energy 
portfolio standards for solar or wind energy installations sited in Delaware provided that 
(i) a minimum of 50% of the cost of renewable energy equipment, incl usive of mounting 
components, are manufactured in Delaware, or (ii) the facility is constructed or installed with a 
minimum of 75% of instate workforce. This means that retail electricity suppliers that sell such 
electricity will more easily meet the renew able energy portfolio standards. In the context of a 
regulatory system requir ing retail electricity suppliers to obtain a certain number of credits per year, 
the possibility of obtaining extra credits without having to sell additional energy is a  clear incentive 
favouring the use of renewable energy equipment, including mounting components, containing local 
inputs and facilities constructed using local workforce. We therefore agree with India that the 
"fundamental thrust and effect"681 of the Bonuses is to in centivize the purchase of such renewable 
energy equipment, mounting components, and facilities . 
7.324.   In our view, therefore, India has made a prima facie case that the Delaware Equipment 
Bonus and the Delaware Workforce Bonus modify the conditions of competitio n in favour of 
renewable energy equipment, inclusive of mounting components, manufactured in Delaware (at 
least 50% of its cost) and facilities constructed or installed with a minimum of 75% in -state 
                                                
676 India's first written submission, para.  873. 
677 India's first written submission, para.  873. See also India's first written submission, para.  878. 
678 India's first written submission, para.  878. 
679 United  States ' first written submission, para.  125. 
680 See para. 2.52 above.  
681 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  215. 
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  workforce  by creating a financial incentive favo uring th eir usage .682 We recall in this connection that 
past cases have consistently found that the provision of incentives or advantages for the use of 
domestic over imported products accord less favourable treatment to such imported products.683  
7.325.   As noted, the Unite d States' primary response to India's claim is that, because India has 
failed to show that Measure 9 affects the sale, purchase, transportation or use of the relevant 
products, it follows that it has also failed to show that the measure accords treatment l ess favourable 
to imported than to domestic products.684  
7.326.   We have already found that, because it provides an advantage for the use of domestic 
products but not for the use of imported products, and thus impacts the conditions of competition 
between imported and domestic products, Measure  9 does affect the sale, p urchase, transportation, 
distribution or use of the relevant products.685 Moreover, as explained above, in our view the 
question whether a measure accords treatment less favourable to imported products is related to , 
but distinct from , the question whether i t affects the sale, purchase, transport, distribution or use of 
products. It follows that the United States' argument in this regard is not capable of rebutting India's 
prima facie  case that Measure 9 accords less favourable treatment to imported than to d omestic 
products.  
7.327.   Finally, w e recall the United  States ' arguments , in the context of whether Measure 9 affects 
the sale, purchase, transportation, distribution or use of products,  concerning  the tradability and 
monetary value of renewable energy credits and solar renewable energy credits , the absence of solar 
panel manufacturing activities in Delaware, and the fact that the measure is addressed to entities 
that distribute electricity and do not generate it. We  have discussed this evidence above.686 For 
presen t purposes,  and insofar as th is argument might be relied on to argue that the measure  does 
not accord less favourable treatment , it suffices to  recall that past cases have consistently held that 
neither evidence of actual market effects nor proof that "the  sourcing decisions of private firms have 
actually been impacted by" the measure at issue is necessary to make out a case of less favourable 
treatment.687 The implications for  competitive conditions of the Delaware Bonuses challenged by 
India are explicit from the text, design, and structure of the relevant provisions. To use the words 
of the panel in US – FSC ( Article  21.5 – EC), "[t]he less favourable treatment we have found a rises 
by necessary implication from the words actually used in the text" of Measure  9.688 Accordingly, we 
do not consider that the United  States  has rebutted India's prima facie  case that the Delaware 
Equipment Bonus and the Delaware Workforce Bonus treat no n-local products, including imported 
products, less favourably than like local products.  
7.328.   We therefore find that India has shown prima facie , and the United  States  has not rebutted,  
that the Delaware Equipment Bonus and the Delaware Workforce Bonus modify t he conditions of 
competition to the detriment of imported renewable energy equipment, mounting components, and 
facilities, and therefore accords less favourable treatment to such products within the meaning of 
Article  III:4 of the GATT  1994. 
7.3.4.9   Measure  10: Mi nnesota production incentives and rebates  
7.329.   India submits that the Minnesota solar energy production incentive ( SEPI) and the Minnesota 
solar photovoltaic ( PV) rebate under Measure  10 accord less favourable treatment to imported 
products than to like domestic products "by incentivizing and, thereby, deny[ing] the effective 
equality of opportunity to the imported products to compete in the domestic market of Minnesota".689 
                                                
682 The fact that domestic but non -local like products (i.e. like products from areas of the United  States 
other than Delaware) are accorded the same treatment as imported products under the measure at issue does 
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports , para.  6.294 
(fn omitted, referring to Panel Report, US – Malt Beverages , paras. 5.17 and 5.33).  
683 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  220; Panel Reports, India – Solar Cells , 
para. 7.95; US – COOL , para.  7.358; Mexico – Taxes on Soft Drinks , para.  8.117; US – FSC (Article 21.5 – 
EC), para.  8.156.  
684 United States' first written submission, para. 125.  
685 See para. 7.198  above.  
686 See paras. 7.222  - 7.224  above.  
687 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
688 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
689 India's first written submission, para.  1011.  
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  According to India, by "creating a distinction between the domestic and imported pr oducts on the 
basis of origin and by giving the end consumers a direct financial advantage in terms of incentives 
or rebates for using the domestic products", the SEPI and the Minnesota solar PV rebate  "alter the 
conditions of competition in the market in favour of the domestic products and to the obvious 
detriment of the imported products" .690 
7.330.   The United  States  responds that  insofar as India has failed to show that the two program s 
affect the sale, purchase, transportation, distribution or us e of the relevan t products,  India has 
necessarily failed to show that they accord less favourable treatment to imported products.691  
7.331.   As explained above692, the SEPI and the Minnesota solar PV rebate  provide  incentives and 
rebates for the use of solar PV modules made in Minnesota .  
7.332.   We find convincing India's submission that the SEPI and the Minnesota solar PV rebate  
accord less favourable treatment to relevant non-local products, including imported products. 
Looking at the text, design, and structure of the two program s, we note that both offer an advantage 
to owners of grid -connected solar PV modules (SEPI), and owners of qualified properties (for the 
solar PV rebate) provided that they install solar PV modules made in Minnesota. The definitions of 
"made in Minnesota (for  SEPI)693 and "manufactured in Minnesota" (for the Minnesota solar PV 
rebate)694 leave no doubt that imported solar PV modules cannot qualify for the incentives and 
rebates at issue. Thus, we consider that the "fundamental thrust and effect"695 of the two progra ms 
at issue is to promote the use of solar PV modules made in Minnesota.  
7.333.   In our view, therefore, India has made a prima facie case that the SEPI and the Minnesota 
solar PV rebate  modify the conditions of competition by creating a financial incentive favo uring 
solar PV modules made in Minnesota .696 We note in this connection that past cases have consistently 
found that the provision of incentives or advantages for the use of domestic over imported products 
accord less favourable treatment to such imported products.697  
7.334.   As noted, the United States' pri mary response to India's claim is that, because India has 
failed to show that Measure 10 affects the sale, purchase, transportation or use of the relevant 
products, it follows that it has also failed to show that the measure accords treatment less favourab le 
to imported than to domestic products.698  
7.335.   We have already found that, because it provides an advantage for the use of domestic 
products but not for the use of imported products, and thus impacts the conditions of competition 
between imported and domestic  products, Measure  10 does affect the sale, purchase, transportation, 
distribution or use of the relevant products.699 Moreover, as explained above, in our view the 
question whether a measure accords treatment less favourable to imported products is related to, 
but distinct from , the question whether it affects the sale, purchase, transport, distribution or use of 
products. It follows that the United States' argument in this regard is not capable of rebutting India's 
prima facie  case that Measure 10 accords l ess favourable treatment to imported than to domestic 
products.  
7.336.   Finally, w e recall the United  States ' argument , in the context of whether the SEPI affects the 
sale, purchase, transportation, distribution or use of products,  that evidence on the record show s 
                                                
690 India's first written submission, para.  1013.  
691 United  States' first written submission, para.  129. 
692 See para. 2.55 above.  
693 See para. 2.58 above.  
694 See para. 2.67 above.  
695 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  215. 
696 The fact that domestic but non -local like products (i.e. like products from areas of the United  States 
other than Minnesota) are accorded the same treatment as imported products under the measure at issue does 
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports , para.  6.294 
(fn omitted, referring to Panel Report, US – Malt Beverages , paras. 5.17 and 5.33).  
697 Appellate Body Report, US – FSC (Article 21.5 – EC), para.  220; Panel Reports, India – Solar Cells , 
para. 7.95; US – COOL , para.  7.358; Mexico – Taxes on Soft Drinks , para.  8.117; US – FSC (Article 21.5 – 
EC), para.  8.156.  
698 United States' first written submission, para. 129.  
699 See para. 7.239  above.  
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  that only a  "negligible amount" of solar installations have received incentives under the SEPI during 
2016.700 We discussed this evidence above.701 In the present context,  and insofar as this argument 
might be relied upon to argue that the measure  does not  accord less favourable treatment , it suffices 
to recall that past cases have consistently held that neither evidence of actual market effects nor 
proof that "the sourcing  decisions of private firms have actually been impacted by" the measure at 
issue is necessary to make out a case of less favourable treatment.702 The implications for 
competitive conditions of the SEPI are explicit from the text, design, and structure of the  relevant 
provisions. To use the words of the panel in US – FSC ( Article  21.5 – EC), "[t]he less favourable 
treatment we have found arises by necessary implication from the words actually used in the text" 
of the two program s at issue .703 Accordingly, we do not consider that evidence showing that the 
SEPI granted incentives to a "negligible amount" of solar installations during 2016 is sufficient to 
rebut India's prima facie  case that the SEPI treats non -local products, including imported products, 
less favou rably than like local products.  
7.337.   We therefore find that India has shown prima facie , and the United  States  has not rebutted,  
that the  SEPI and the  Minnesota  solar PV rebate modify the conditions of competition to the 
detriment of imported solar PV modules , and therefore accords less favourable treatment to such 
products within the meaning of Article  III:4 of the GATT  1994. 
7.3.4.10   Conclusion on less favourable treatm ent 
7.338.   In conclusion, we find that India has shown prima facie , and the United  States  has not 
rebutted, that each of the measures at issue accords to imported products treatment less favourable 
than that accorded to like domestic products within the meaning o f Article  III:4 of the GATT  1994. 
7.3.5   Conclusion on India's claims under Article  III:4 of the GATT  1994  
7.339.   We have found that the relevant domestic and imported products under each measure at 
issue are like products  within the meaning of Article  III:4 of the GATT  1994. We have also found 
that each measure at issue is a "law", "regulation" or "requirement" "affecting the[] internal sale, 
offering for sale, purchase, transportation, distribution or use" of the relevant  products within the 
meaning of Article  III:4 of the GATT  1994. Finally, we have concluded that each measure at issue 
accords to relevant imported products704 treatment less favourable than that accorded to like 
domestic products within the meaning of Article  III:4 of the GATT  1994. 
7.340.   We therefore conclude that India has established, and the United  States  has not rebutted, 
that each measure at issue fulfils all t hree elements of the legal test under Article  III:4 of the 
GATT  1994 and is therefore inconsistent with Article  III:4 of the GATT  1994.  
7.341.   Having found that the measures at issue are inconsistent with Article  III:4 of the GATT  1994, 
we turn to India's other claims in this dispute. As noted, India challenges the measures at issue 
under Articles  2.1 and 2.2 of the TRIM s Agreement , Articles  3.1(b), 3.2 and 25 of the 
SCM Agreement , and Article  XXIII:1(a) of the GATT  1994, and we address these claims in this order . 
7.4  India's claims under the TRIM s and SCM  Agreement s 
7.342.   We recall that, for India, "[its] claims under the TRIM s Agreement  and the SCM  Agreement  
clearly emanate from the violation of Article  III:4 of the GATT  1994"705, as "the core of [its] claims 
lie in the discriminatory treatment  between the imported products and 'like' products of domestic 
origin".706 We also recall that, according to the Appellate  Body, some of the key provisions invoked 
                                                
700 United  States' first written submission, para.  129. 
701 See paras. 7.237  - 7.238  above.  
702 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
703 Panel Report, US – FSC (Article 21.5 – EC), para.  8.159.  
704 Although we have found that India has not made a prima facie  case that the Montana tax incentive 
accords less favourable treatment to imported ethanol  (i.e. the final product), this does not affect our overall 
conclusion that, because Measure 4 accords less favourable treatment to imported  ethanol ingredients , it is 
inconsistent with Article III:4 of the GATT  1994.  
705 India's opening statement at the first meeting of the Panel, para.  11. 
706 India's opening statement at the first meeting of the Panel, para.  11 (emphasis  original).  
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  by India in the present dispute overlap as regards discriminatory cond uct involving local content 
requirements:707 
Both the national treatment obligations in Article  III:4 of the GATT  1994 and the 
TRIMs Agreement , and the disciplines in Article  3.1(b) of the SCM  Agreement , 
are cumulative obligations. Article  III:4 of the GATT  1994 and the TRIMs  Agreement , 
as well as Article  3.1(b) of the SCM  Agreement , prohibit the use of local content 
requirements in certain circumstances . These provisions address discriminatory conduct  
…708 
7.343.   This raises the question whether a positive resolution  of this dispute requires us to assess 
India's additional claims under the TRIM s Agreement  and the SCM  Agreement , or whether – in light 
of our findings under Article  III:4 of the GATT  1994 – we should exercise judicial economy on India's 
claims under the T RIMs and SCM  Agreement s. 
7.344.   India has requested us to address each of its claims under the GATT  1994, 
the TRIMs Agreement  and the SCM  Agreement .709 The United  States , on the contrary, has argued 
that "the Panel may consider the reasons behind this case in decid ing on the extent to which the 
Panel exercises its discretion to use judicial economy."710 Recalling that rulings made by the DSB 
"shall  be aimed at achieving a satisfactory settlement of the matter"711, the United  States  adds that 
"the Panel should consider t he extent to which it needs to reach India's claims that raise the same 
basic issues under three different WTO agreements".712 
7.345.   According to the Appellate  Body, "[j]udicial economy refers to the discretion of a panel to 
address only those claims that must be addressed 'in order to resolve the matter in issue in the 
dispute'", and "th[is] discretion of a panel … is consistent with the aim of the WTO dispute settlement 
mechanism, as articulated in Article  3.7 of the DSU, to 'secure a positive solution to a dispu te'".713  
7.346.   Bearing these considerations in mind, w e turn to examine the appropriateness of exercising 
judicial economy in respect of India's claims under the TRIM s and the SCM  Agreement s, respectively . 
                                                
707 The United  States does not contest this, whereas India explicitly argues that the core of its claims lies 
in the "discriminatory treatment" between the products imported to the US and those like products of domestic 
origin and explains that all its claims emanate fr om the violation of Article III:4 of the GATT  1994. India' response 
to Panel question No. 54.  
708 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para.  5.5.  
See also Panel Reports, Brazil – Taxation , para.  7.48. 
709 India' s first written submission, paras.  1175-1178. See also India's remarks at the first meeting of the 
Panel, part of the official record (minute 15:19 of the meeting on 10 October 2018), and second written 
submission, para.  99 and fn  76. 
710 United  States' open ing statement at the second meeting of the Panel, para.  5. 
711 United  States' opening statement at the second meeting of the Panel, para.  8, quoting Article 3.4 of 
the DSU.  
712 United  States' opening statement at the second meeting of the Panel, para.  8. In pa rticular, the 
United  States has suggested that "if the Panel finds that India has established that a measure is inconsistent 
with Article III:4 of the GATT  1994, the Panel could decline to make a separate finding under the TRIMs 
Agreement". See United  States' response to Panel question No. 53.  
713 Appellate Body Report,  EU – PET (Pakistan) , para.  5.20 (fns  omitted, referring to Appellate  Body 
Reports, US – Wool Shirts and Blouses , p. 19; India – Patents (US) , para.  87; Brazil – Retreaded Tyres , 
para. 257; Canada – Wheat Exports and Grain Imports , para.  133; US - Lead and Bismuth II , paras.  71 and 
73; Argentina – Footwear (EC) , para.  145; Australia – Salmon , para.  223; and Japan – Agricultural Products II , 
para. 111).  
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  7.4.1   India's claims under the TRIM s Agreement  
7.347.   India's claims under the TRIM s Agreement  relate to Articles  2.1714 and 2.2715 of 
that Agreement , and paragraph 1(a) of the Illustrative List716 contained in the  Agreement 's Annex 
and referenced in its Article  2.2.  
7.348.   We begin by observing that, according to the recent pan el reports in Brazil – Taxation , 
"[a]lthough there is some overlap between these … provisions, … there are also differences in their 
respective scope of application"717: "[i]n particular, the scope of Article  III:4 of the GATT  1994 is 
broader than that of Article 2.1 of the TRIM s Agreement  …, since it refers generally to 'laws, 
regulations and requirements'", whereas "[a]  measure is only covered by Article  2.1 of the 
TRIMs Agreement  if it is a TRIM within the meaning of that agreement".718 This suggests to us t hat, 
in principle, compliance with a finding of inconsistency with Article  III:4 of the GATT  1994 would 
bring about compliance with the narrower obligations of the TRIM s Agreement , and therefore where 
a panel has already found a violation of Article  III:4 of the GATT  1994 it may not be necessary to 
make additional findings on the same measure(s) under the TRIM s Agreement . 
7.349.   Indeed, in several past cases, panels have decided to exercise judicial economy on claims 
under the TRIM s Agreement  after having found vi olations under the GATT  1994, in particular its 
Article  III:4. Thus, in Turkey – Rice, the panel  recogni zed that there is a close link between Article  2 
of the TRIM s Agreement  and Article  III:4 of the GATT  1994. It explained that "[b]oth provisions of 
the TRIM s Agreement , Article  2.1 and paragraph 1(a) of the Annex, refer to the obligation of 
Members not to apply trade -related investment measures in a manner that is inconsistent with 
specific rules contained in the GATT  1994, notably in Article III and in Article  XI."719 The panel 
concluded that "if  [it] found that the domestic purchase requirement is inconsistent with Article  III:4 
of the GATT  1994, [it] need not make a finding under the TRIM s Agreement ".720 
7.350.   The panel in  India – Autos followed  a similar approach. It stated that, having found that the 
measures at issue were inconsistent with Article  III:4 of the GATT  1994, "it [wa]s not necessary to 
consider separately whether they are also inconsistent with the provisions of the 
TRIMs Agreement ".721 The panel added that:  
It seems that an examination of the GATT provisions in this case would be likely to 
make it unnecessary to address the TRIM s claims, but not vice -versa. If a violation of 
the GATT claims was found, it would be justifiable to refra in from examining the TRIM s 
claims under the principle of judicial economy.722  
                                                
714 According to Article 2.1 of the TRIMs Agreement, "[w]ithout 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."  
715 According to Artic le 2.2 of the TRIMs Agreement, "[a]n 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 p rovided for in paragraph  1 of Article  XI of 
GATT  1994 is contained in the Annex to this Agreement".  
716 According to paragraph  1(a) of the Illustrative List contained in the Annex to the TRIMs  Agreement 
and referenced in its Article 2.2:  
 
"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 
administrative rulings, or compliance with which is necessary to ob tain 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 propor tion of volume or value of its local production …".  
717 Panel Reports, Brazil – Taxation , para.  7.47. 
718 Panel Reports, Brazil – Taxation , para.  7.47 (fn  omitted, referring to Panel Report, Indonesia – 
Autos , para. 14.82).  
719 Panel Report, Turkey – Rice, para. 7.184.  
720 Panel Report, Turkey – Rice, para.  7.184.  
721 Panel Report, India – Autos , para.  7.324.  
722 Panel Report, India – Autos , para.  7.161.  
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  7.351.   Likewise, the panel in China – Auto Parts  decided to exercise judicial economy with respect 
to claims made under the TRIM s Agreement  after having found a violation of Article  III:4 of the 
GATT  1994. The  panel explained that its findings under the GATT  1994 were "sufficient for the 
resolution of the dispute" because "bringing the measures into conformity with China's obligations 
pursuant to [its] findings under Article  III:4 of the  GATT  1994 would also remove any inconsistency 
of these measures with the TRIM s Agreement ".723  
7.352.   The panel in EC – Bananas III  decided to exercise judicial economy for similar reasons, by 
holding that it did not:  
[C]onsider it necessary to make a specific ruling under the TRIM s Agreement  with 
respect to the [measures at issue]. On the one hand, a finding that the measure in 
question would not be considered a trade -related investment measure for the purposes 
of the TRIM s Agreement  would not affect o ur findings in respect of Article  III:4 since 
the scope of that provision is not limited to TRIMs and, on the other hand, steps taken 
to bring [the measures at issue] into conformity with Article  III:4 would also eliminate 
the alleged non -conformity with o bligations under the TRIMs  Agreement .724  
7.353.   Like the above panels, we do not find it necessary to address India's claims under the 
TRIMs Agreement  in order to provide a positive solution to this dispute. Bearing in mind that Article  2 
of the TRIM s Agreement  is only concerned with TRIMs that are inconsistent with Article  III 
(or Article  XI) of the GATT  1994725, and also in light of the relatively consistent practice of past 
panels when faced with claims under Article III:4 of the GATT  1994 and Article  2 of the 
TRIMs Agreement , we consider that steps taken by the United  States  to bring the measures at issue 
into compliance with Article  III:4 of the GATT  1994 will also eliminate the alleged non -conformity of 
the same measures with obligations under the TRIM s Agreemen t.  
7.354.   We therefore exercise judicial economy with regard to India's claims under Articles  2.1 and 
2.2 of the TRIM s Agreement . 
7.4.2   India's claims under the SCM  Agreement  
7.355.   As noted, India requests that the Panel find that all of the measures at issue are inconsistent 
with Articles  3.1(b), 3.2, and 25 of the SCM  Agreement .726 
7.4.2.1   Articles  3.1(b) and 3.2 of the SCM  Agreement  
7.356.   In the above -mentioned Brazil – Taxation  dispute, the pane l explained that the scope of 
Article  3.1(b) of the SCM  Agreement  is also narrower than the scope of Article  III:4 of the 
GATT  1994. In particular, "[a]lthough there is some overlap between these … provisions, … there 
are also differences in their respecti ve scope of application"727 insofar as "the scope of Article  III:4 
of the GATT  1994 is broader than that of … Article  3.1(b) of the SCM  Agreement , since [ Article  III:4 
of the GATT  1994] refers generally to 'laws, regulations and requirements'", whereas "a measure is 
only covered by Article  3.1(b) of the SCM  Agreement  if it is a subsidy within the meaning of that 
agreement".728 On appeal, the Appellate  Body confirmed that establishing the existence of a 
                                                
723 Panel Reports, China – Auto Parts , para.  7.368.  
724 Panel Reports, EC – Bananas III , para.  7.186.  
725 Article 2.1  of the TRIMs Agreement.  
726 India's first written submission, paras.  1175-1176.  
727 Panel Reports, Brazil – Taxation , para.  7.47. 
728 Panel Reports, Brazil – Taxation , para.  7.47 (fn  omitted). Likewise, the panel in Canada – Autos 
"recognize[d] that Article 3.1 (b) in some sense has its roots in Article III:4 of GATT and in certain 
interpretations of that provision, which relates to non -discrimination. We do not consider however that 
Article  3.1(b ) ipso facto  has the same scope as Article III:4. To the contrary, while Article III:4 of GATT speaks 
of 'treatment no less favourable' and of requirements 'affecting' internal sale, Article 3.1(b) speaks of subsidies 
'contingent upon the use of domestic over imported goods '." Panel Report, Canada – Autos , para.  10.215.  
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  prohibited subsidy under Articles  3.1(b)729 and 3.2730 of the SCM  Agreement  requires meeting a 
"more  demanding standard than demonstrating that an incentive to use domestic goods exists under 
Article  III:4 of the GATT  1994".731  
7.357.   In the context of the dispute before us, this  suggests that, by bringing the challenged 
measures into conformity with Article  III:4 of the GATT  1994, the United  States  would also eliminate 
the alleged non -conformity of the same measures with the narrower obligations of Article 3 of the 
SCM Agreement , and therefore where a panel has already found a violation of Article  III:4 of the 
GATT  1994 it may not be necessary to make additional findings on the same measure(s) under 
Article  3 of the SCM  Agreement . 
7.358.   We also recall that in China – Auto Parts , after having found a violation under Article  III of 
the GATT  1994, the panel exercised judicial economy on claims under both the TRIM s Agreement  
and the SCM  Agreement . The panel held that, regarding the local content requirements challe nged 
in that dispute, addressing the complainant's SCM claims would not be necessary to secure a positive 
solution of the dispute, because "bringing the measures into conformity with China's obligations 
pursuant to [the] findings under Articles  III:2 and I II:4 of the GATT  1994 also would remove any 
inconsistency of those measures with Articles  3.1(b) and 3.2 of the SCM  Agreement ".732 On appeal, 
the Appellate  Body noted – without criticism – that "[t]he [p]anel exercised judicial economy with 
respect to the cl aims under the TRIM s Agreement  … and Articles  3.1(b) and 3.2 of the 
SCM Agreement ".733 
7.359.   Likewise, in Canada – Autos  the Appellate  Body validated the panel's exercise of judicial 
economy on claims under Article  3 of the SCM  Agreement  following findings of violation under 
Article  III:4 of the GATT  1994. On appeal, the European  Communities  argued that the panel in that 
dispute had committed  legal error by failing to address its claim under Article  3.1(a) of the 
SCM Agreement .734 The Appellate  Body disagreed. Although it criticised the panel for failing to make 
explicit its decision to exercise judicial economy735, the Appellate  Body held that th e panel was 
entitled not to address the claim under Article  3.1(a) because, having already found that the aspects 
of the measure in question were inconsistent with Article  III:4 of the GATT  1994 (and Article  XVII 
of the GATS), findings under Article  3.1(a)  of the SCM  Agreement  were not necessary to secure a 
positive solution to the dispute.736 
7.360.   We are cognizant that, in EC – Export Subsidies on Sugar , the Appellate  Body reversed a 
panel's decision to exercise judicial economy on claims under Article  3 of the S CM Agreement . In that 
case, the Appellate  Body concluded that the panel's exercise of judicial economy in regard to the 
complainants' claims under Article  3 of the SCM  Agreement  following findings of violation under 
Articles  9 and 10 of the  Agreement  on Ag riculture constituted legal error.737 The Appellate  Body 
noted738 that the SCM  Agreement  contains "special rules and additional procedures on dispute 
settlement" in respect of subsidies prohibited under Article  3, in particular, Article  4.7 of the 
                                                
729 According to Article 3.1(b) of the SCM Agreement:  
 
"1. Except as provided in the Agreement on Agriculture, the following subsidies, within the meaning 
of Article  1, shall be prohibited:  
… 
(b) subsidies contingent, whether solely or as one of sev eral other conditions, upon the use 
of domestic over imported goods."  
730 According to Article 3.2 of the SCM Agreement, "[a] Member shall neither grant nor maintain 
subsidies referred to in paragraph  1". 
731 Appellate Body Reports, Brazil – Taxation , para.  5.254. 
732 Panel Reports, China – Auto Parts , para.  7.635.  
733 Appellate Body Reports, China – Auto Parts , para.  7. 
734 Appellate Body Report, Canada – Autos , para.  110. 
735 Appellate Body Report, Canada – Autos , para.  117. 
736 Appellate Body Report, Canada – Autos , para. 116. 
737 Appellate Body Report, EC – Export Subsidies  on Sugar , para.  335. 
738 Appellate Body Report, EC – Export Subsidies  on Sugar , para.  335. 
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  SCM Agreemen t.739 According to the Appellate  Body, by declining to rule on the claim under Article  3 
of the SCM  Agreement , the panel "precluded the possibility of a remedy being made available to the 
Complaining Parties, pursuant to Article  4.7 of the SCM  Agreement , in the event of the [p]anel 
finding in favour of the Complaining Parties with respect to their claims under Article 3".740 In the 
Appellate  Body's view, by  precluding itself from making a recommendation under Article  4.7 of the 
SCM Agreement , the panel had failed to make "such … findings as [would] assist the DSB in making 
the recommendations … provided for in the c overed agreements", as required by Article  11 of the 
DSU.741 
7.361.   We are mindful of our obligation to make an objective assessment of the matter before us, 
in line with Article  11 of the DSU, including an assessment of the appropriateness of exercising 
judicial e conomy on India's claims under Article  3 of the SCM  Agreement . That  said, in our view, the 
Appellate  Body's analysis  in EC – Export Subsidies on Sugar  is not directly applicable to the dispute 
before us.  
7.362.   In EC – Export Subsidies on Sugar , the Appellate  Body addressed the relationship between 
agreements and provisions that are different in important respects from those invoked by India in 
the present dispute. The provisions at issue in EC – Export Subsidies on Sugar , Articles  3.3 and 8 
(through Articles  9.1(a) and 9.1(c)) of the  Agreement  on Agriculture and Article  3 of the 
SCM Agreement , all address subsidies. The existence of a specific relationship of these provisions is 
recogni zed in Article  3 of the SCM  Agreement , which explicitly refers to the  Agreemen t on 
Agriculture.742  
7.363.   Moreover, the panel 's decision  in EC – Export Subsidies on Sugar  to exercise judicial 
economy with regard to the complainants' claim under Article  3 of the SCM  Agreement  was 
introduced by reference to its earlier finding that "the EC su gar regime [was] inconsistent with the 
European Community's export subsidy obligations under Articles  3.3 and 8 (through Article  9.1(a) 
and 9.1(c)) of the  Agreement  on Agriculture".743 We also recall that in EC – Export Subsidies on 
Sugar , before exercising judicial economy, the panel had already found that the measures at issue 
were subsidies subject to prohibition under Article  8 of the  Agreement  on Agriculture, but had then 
declined to make findings under the S CM Agreement , or explore the possible applicability of 
Article  4.7 thereof, which provides for panels to make a special recommendation where they have 
found a challenged measure to be prohibited subsidy.744  
7.364.   In light of this, we do not read the Appellate  Body's report in EC – Export Subsidies on Sugar  
as articulating a general principle  that a panel may never exercise judicial economy on claims under 
the SCM  Agreement . Rather, as we understand it, where a measure is found to be a subsidy 
prohibited under the  Agreement  on Agriculture745, a panel should consider the implications of its 
subsidy -related findings under the  Agreement  on Agriculture for the consistency of those measures 
with the provisions of the SCM  Agreement  dealing with prohibited subsidies.  
                                                
739 According to Article 4.7 of the SCM Agreement, "[i]f the measure in question is found to be a 
prohibited subsidy, the panel shall  recommend that the subsidizing Member withdraw the subsidy without 
delay. In this regard, the panel shall specify in its reco mmendation the time -period within which the measure 
must be withdrawn".  
740 Appellate Body Report, EC – Export Subsidies  on Sugar , para.  335. 
741 Appellate Body Report, EC – Export Subsidies  on Sugar , para.  335. 
742 The chapeau of Article 3 of the SCM Agreement is introduced with the phrase "Except as provided in 
the Agreement on Agriculture …". See also Article 13(c)(ii) of the Agreement on Agriculture and Appellate  Body 
Report, Canada – Dairy (Article 21.5 – New Zealand and US) , paras. 123-124. 
743 Panel Report, EC – Export Subsidies on Sugar , para.  7.381.  
744 All three complainants in that dispute (i.e. Australia, Brazil, and Thailand) explicitly requested that 
the Panel recommend to the DSB that the European Communities bring its mea sures at issue into conformity 
with its WTO obligations in accordance with both Article 19.1 of the DSU and Article 4.7 of the SCM  Agreement. 
See Panel Report, EC – Export Subsidies  on Sugar , paras.  4.3, 4.5, and 4.8.  
745 According to the Appellate Body, "[i ]t is clear from the plain wording of Article 8 [of the Agreement 
on Agriculture] that Members are prohibited  from providing export subsidies otherwise than in conformity with 
the Agreement on Agriculture and the commitments specified in their Schedules". Appellate Body Report, 
EC – Export Subsidies  on Sugar , para.  216 (emphasis  added).  
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  7.365.   The pr esent  dispute is , however,  different from EC – Export Subsidies on Sugar  in key 
respects. As noted, EC – Export Subsidies on Sugar  addressed the issue of judicial economy in regard 
to provisions different from the ones invoked by India before us. Important ly, Article  III:4 of the 
GATT  1994 and Articles  2.1 and 2.2 of the TRIM s Agreement  do not relate to subsidies. Our finding 
that the measures at issue violate Article  III:4 of the GATT  1994 neither entails nor implies that the 
measures at issue are or are n ot subsidies.746  
7.366.   Instead of EC – Export Subsidies on Sugar , we find the more recent China – Auto Parts  
dispute to provide more relevant and compelling guidance on the issue of judicial economy before 
us. That case dealt with precisely the same main provisio ns as the ones invoked by India before us. 
The circumstances of China – Auto Parts  were also closer to the present dispute, in that the panel 
in that case decided to exercise judicial economy in respect of local content requirements that it had 
already fou nd to be inconsistent with Article  III of the GATT  1994. It was in the specific context of 
those local content requirements and legal provisions  invoked  that the panel in China – Auto Parts 
concluded that addressing the United  States ' SCM claims would not be necessary to secure a positive 
resolution of the dispute as "bringing the measures into conformity with China's obligations pursuant 
to [the] findings under Articles  III:2 and III:4 of the GATT  1994 also would remove any inconsist ency 
of those measures with Articles  3.1(b) and 3.2 of the SCM  Agreement ."747 As summari zed above, 
on appeal the Appellate  Body explicitly noted that "[t]he  [p]anel exercised judicial economy with 
respect to the claims under the TRIM s Agreement  … and Article s 3.1(b) and 3.2 of the 
SCM Agreement ".748 In doing so, the Appellate  Body did not make any reference to Article  4.7 of the 
SCM Agreement  or its earlier report in EC – Export Subsidies on Sugar , let alone criticise the panel 
for having exercised judicial eco nomy with regard to Article  3 of SCM  Agreement  following a finding 
of violation under Article  III:4 of the GATT  1994. 
7.367.   Given the similarity of the matter in China – Auto Parts , i.e. local content requirements 
challenged under the non -discrimination provisio ns of Article  III of the GATT, the TRIM s Agreement , 
and Articles  3.1(b) and 3.2 of the SCM  Agreement , and the matter before us in this dispute, 
we consider that the United  States  bringing its measures at issue into conformity with its obligations 
pursuant to Article  III:4 of the GATT  1994 would "remove any inconsistency of those measures with 
Articles  3.1(b) and 3.2 of the SCM  Agreement ".749 As discussed above, India has argued, and we 
have found, that the measures at issue violate Article  III:4 of the GATT  1994 because they condition 
an advantage on the use of domestic over imported products. It seems to us that, if the United  States  
removed such conditionality in order to bring itself into compliance with Article  III:4 of the 
GATT  1994, it would also eliminate the alleged non -conformity of the same conditionality with its 
obligations under Article  3 of the SCM  Agreement , thus removin g the basis or need for any finding 
that the measures are prohibited subsidies within the meaning of Article  3 of the SCM  Agreement . 
7.368.   For these reasons, we exercise judicial economy on, and refrain from addressing, India's 
claims under Articles  3.1(b) and 3 .2 of the SCM  Agreement . 
7.4.2.2   Article  25 of the SCM  Agreement  
7.369.   India also challenges the measures at issue under Article  25 of the SCM  Agreement . 
In particular, according to India, the United  States  has acted in consistently  with Article  25 of the 
SCM Agreement , specifically paragraphs 2 and 3750, by failing to notify the measures at issue to the 
SCM Committee.751 
7.370.   The notification obligation under Article  25.2 of the SCM  Agreement  covers "any subsidy as 
defined in paragraph  1 of Article  1, which is specific within the  meaning of Article  2, granted or 
                                                
746 As the panel in Canada – Autos  stated, " while Article III:4 of [the] GATT [1994] speaks of 'treatment 
no less favourable' and of requirements 'affecting' internal sale, Ar ticle 3.1(b) [of the SCM Agreement] speaks 
of subsidies 'contingent upon the use of domestic over imported goods '". Panel Report, Canada – Autos , 
para. 10.215.  
747 Panel Reports, China – Auto Parts , para.  7.635.  
748 Appellate Body Reports, China – Auto Parts , para. 7. 
749 Panel Reports, China – Auto Parts , para.  7.635.  
750 Article 25.2 of the SCM Agreement provides that "Members shall notify any subsidy as defined in 
paragraph  1 of Article  1, which is specific within the meaning of Article  2, granted or maintained within their 
territories", whereas Article 25.3 prescribes the content of such notifications.  
751 India's first written submission, para.  30. 
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  maintained within their territories". An examination of a claim under Article  25.2 of the 
SCM Agreement  thus presupposes a finding, inter alia , that the measure at issue is a subsidy as 
defined in Article  1.1, and is speci fic within the meaning of Article  2 of the SCM  Agreement . India  has 
not made any independent arguments regarding specificity ; India merely argues that, pursuant to 
Article  2.3 SCM  Agreement752, the measures at issue are specific subsidies as a result of bein g 
prohibited under Article  3.1 of the SCM  Agreement .753 
7.371.   Thus, India's claim under Article  25 of the SCM  Agreement  is directly linked to, and depends 
on, the outcome of its claims under Article  3.1(b) of the SCM  Agreement . As we have chosen to 
exercise judicial economy on India's claims under Article  3.1(b) of the SCM  Agreement , there is no 
basis for us to rule on India's claim under Article  25 of the SCM  Agreement . Having  decided that it 
is not necessary for us to determi ne whether the measures at issue are subsidies within the meaning 
of the SCM  Agreement , in particular Article  3.1(b), it follows  a fortiori  that it is not necessary for us 
to assess whether the measures should have been notified as subsidies under Article  25 of the 
SCM Agreement  in order to secure a positive resolution of this dispute.  
7.372.   Accordingly, we also exercise judicial economy on India's claims under Article  25 of the 
SCM Agreement . 
7.5  India's claim under Article  XXIII:1( a) of the GATT  1994  
7.373.   India has requ ested us to find that "the measures at issue, individually and/or collectively, 
have nullified and/or impaired the benefits accruing to India under Article  XXIII:1(a) of the 
GATT  [1994]".754 
7.374.   We recall that, pursuant to Article  3.8 of the DSU, in cases where there is an infringement 
of the obligations assumed under a covered agreement, the action is considered prima facie to 
constitute a case of nullification or impairment. We therefore conclude that, to the extent that the 
measures at issue are inconsistent w ith Article  III:4 of the GATT  1994, they have nullified or 
impaired benefits accruing to India under that agreement.  
8  CONCLUSIONS AND RECOM MENDATIONS  
8.1.  As regards our terms of reference, we have found that:  
a) for the reasons set forth in our preliminary ruling755, the Los Angeles Manufacturing Credit 
(LAMC) Adder ( Measure  3), and the Massachusetts Manufacturer Adder ( Measure  11) fall 
outside o ur terms of reference, whereas the Minnesota solar thermal rebate and the 
Minnesota s olar photovoltaic  rebate under Measure  10 fall within our terms of reference; 
and 
b) for the reasons set forth in section 7.1.1.2  of this Report, the "made in Washington" bonus 
in Section  82.16.165 of the Revised Code of Washington under Measure  1 does not fall 
within our terms of reference  
8.2.  In light of their amendment following the establishment of the Panel, for the reasons set forth 
in section 7.1.1  of this Report:  
a) we have decided to make findings, and, if necessary, recommendations on Measures 1 
and 8 as amended; and  
b) we have decided to make findings, and, i f necessary, recommendations on Measure  2 as 
implemented through both the 2016  and 2017 California Self -Generation Incentive 
Program  (SGIP) Handbooks.  
                                                
752 According to Article 2.3 of the SCM Agreement, "[a]ny subsidy falling under the provisions of 
Article  3 shall be d eemed to be specific".  
753 India's first written submission, paras.  118, 233, 321, 424, 523, 623, 730, 831, 934, 1037, 1075, 
and 1167.  
754 India's first written submission, para.  1177.  
755 See Annex D -1 containing the preliminary ruling of the Panel.  WT/DS510/R  
 
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  8.3.  In light of their repeal following the establishment of the Panel, for the reasons set forth in 
section 7.1.2 of this Report, we have decided:  
a) to make findings, and, if necessary, recommendations on the Minnesota s olar energy 
production incentive (SEPI) program  under Measure  10; and  
b) not to make findin gs and recommendations on the Minnesota solar thermal rebate  under 
Measure  10. 
8.4.  For the reasons set forth in this Report, we conclude that the following measures are 
inconsistent with the United  States ' obligations under Article  III:4 of the GATT  1994:  
a) the Washington State additional incentive ( Measure  1), as contained  in 
Sections  82.16.110 to 82.16.130 of the Revised Code of Washington, and Section  458-
20-273 of the Washington Administrative Code;  
b) the California Manufacturer Adder ( Measure  2), as embodied in Section  379.6 of the 
California Public Utilities Code, and implemented through the 2016 and 2017 SGIP 
Handbooks;  
c) the Montana tax incentive ( Measure  4), as embodied in Sections 15 -70-502, 15 -70-503, 
and 15 -70-522 of the Montana Annotated Code , and Admini strative Rules of Montana, 
Sections  18.15.701 – 18.15.703 and 18.15.710 – 18.15 -712; 
d) the Montana tax credit ( Measure  5), as embodied in Section  15-32-703 of the Montana 
Annotated Code;  
e) the Montana tax refund ( Measure  6), as embodied in Section  15-70-433 of  the Montana 
Annotated Code;  
f) the Connecticut additional incentive ( Measure  7), as embodied in Section  16-245ff of the 
General Statutes of Connecticut , and Request for Qualification for Eligible Contractors and 
Third Party PV System Owners ; 
g) the Michigan Equipment and Labour Multipliers ( Measure  8), as embodied in Public Act 
No. 342; 
h) the Delaware Equipment and Workforce Bonuses ( Measure  9), as embodied in 
Sections  356(d) and (e) of the Renewable Energy Portfolio Standards Act , and Rules and 
Proced ures to Implement the Renewable Energy Portfolio Standard ;  
i) the Minnesota solar photovoltaic rebate under Measure  10, as embodied in 
Section  116C.7791 of the 2016 Minnesota Statutes; and  
j) the Minnesota solar energy p roduction incentive (SEPI) under Measure  10, as embodied 
in Sections 216C.411 – 216C.415  of the 2016 Minnesota Statutes . 
8.5.  For the reasons set forth in this Report, we conclude as follows:  
a) With respect to India's claims under Articles  2.1 and 2.2 of the TRIM s Agreement , the 
Panel exercises judicial economy for the reasons set forth in section 7.4.1  of this Report.  
b) With respect to India's claims under Articles  3.1(b),  3.2, and 25 of the SCM  Agreement , 
the Panel exercises judicial economy for the reasons set forth in section 7.4.2 of this 
Report.  
8.6.  In light of Article  3.8 of the DSU, t he Panel concludes that, to the extent that the measures at 
issue are inconsistent with Article  III:4 of the GATT  1994, they have nullified or impaired benefits 
accruing to India under that agreement within the meaning of Article  XXIII:1(a) of the GATT  1994. WT/DS510/R  
 
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  8.7.  Pursuant to Article  19.1 of the DSU, we recommend that the DSB request the United  States  to 
bring the following measures into conformity with its obligations under Article  III:4 of the 
GATT  1994: 
a) the Washington State additional incentive ( Measure  1), as embodied in 
Sections  82.16.110 to 82.16.130 of the Revised Code of Washington, and Section  458-
20-273 of the Washington Administrative Code;  
b) the California Manufacturer Adder ( Measure  2), as embodied in Section  379.6 of the 
California Public  Utilities Code, and implemented through the 2017 SGIP Handbook; and 
additionally, as implemented through the 2016 SGIP Handbook to the extent that the latter 
continues to govern certain aspects of the California  Manufacturer Adder for past 
applicants;  
c) the Montana tax incentive ( Measure  4), as embodied in Sections 15 -70-502, 15 -70-503, 
and 15 -70-522 of the Montana Annotated Code , and Administrative Rules of Montana, 
Sections  18.15.701 – 18.15.703 and 18.15.710 – 18.15 -712; 
d) the Montana tax credit ( Measure  5), as embodied in Section  15-32-703 of the Montana 
Annotated Code;  
e) the Montana tax refund ( Measure  6), as embodied in Section  15-70-433 of the Montana 
Annotated Code;  
f) the Connecticut additional incentive ( Measure  7), as embodied in Section  16-245ff of the 
General Statutes of Connecticut , and Request for Qualification for Eligible Contractors and 
Third Party PV System Owners ; 
g) the Michigan Equipment and Labour Multipliers ( Measure  8), as embodied in Public Act 
No. 342; 
h) the Delaware Equipment and Workforce Bonu ses ( Measure  9), as embodied in 
Sections  356(d) and (e) of the Renewable Energy Portfolio Standards Act , and Rules and 
Procedures to Implement the Renewable Energy Portfolio Standard ;  
i) the Minnesota solar photovoltaic rebate under Measure  10, as embodied i n 
Section  116C.7791 of the 2016 Minnesota Statutes; and  
j) the Minnesota s olar energy production incentive (SEPI) program  under Measure  10, as 
embodied in Sections 216C.411 – 216C. 415 of the 2016 Minnesota Statutes, to the extent 
that incentive payments under  this program  continue following its repeal.  
 
 
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