WT/DS 456/20  
 
29 January  2018 
(18-0663) Page: 1/4 
  Original: English  
 
INDIA – CERTAIN MEASURES REL ATING TO SOLAR CELLS  AND SOLAR MODULES  
RECOURSE TO ARTICLE  21.5 OF THE DSU BY INDIA  
REQUEST FOR THE ESTA BLISHMENT OF A PANEL  
The following communication, dated 23 January  2018, from the delegation of India to the 
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article  21.5 of the DSU.  
 
_______________  
 
 
India hereby requests the establishment of a panel pursuant to Article 21.5 of the Understanding 
on Rules and Procedures Governing the  Settlement of Disputes ("DSU"), with respect to the issues 
identified below.  
 
1. BACKGROUND TO THIS REQUEST  
 
On 14 October 2016 the Dispute Settlement Body ("DSB") adopted the recommendations and 
rulings of the Appellate Body Report in India – Certain Measur es Relating to Solar Cells and 
Modules (WT/DS456) .1 
 
The Appellate Body Report ( WT/DS456/AB/R dated 16 September 2016) addressed India 's appeal 
on certain issues of law and legal interpretations developed in the Panel Report (WT/DS456/R 
dated 24 February 2016). The Panel was established on 23 May 2014 to consider a complaint by 
the United States against certain domestic content requirements ( "DCR measures ") imposed by 
India on solar power developers ( "SPDs") selling electricity to governmental agencies und er its 
Jawaharlal Nehru National Solar Mission ( "NSM"). The DCR measures at issue, under Phase I 
(Batch 1), Phase I (Batch 2), and Phase II (Batch 1 -A) of India's National Solar Mission, required 
that certain types of solar cells and modules that are used by the SPDs,  are made in India.  
 
The Appellate Body upheld the finding of the Panel that the DCR measures were inconsiste nt with 
Article 2.1 of the TRIMs  Agreement and Article III:4 of the GATT 1994, and were not covered by 
the derogation under Article III :8(a) of the GATT 1994, based on the reasoning that the 
procurement of solar cells and modules was not by the government, but by SPDs engaged in the 
generation of power. The Appellate Body concluded, in paragraph 6.2 of its Report,  that under 
Article III:8 (a) of GATT 1994, the product purchased by way of procurement (i.e., solar power), 
must necessarily be "like", or "directly competitive" with or "substitutable" for – in other words, in 
a "competitive relationship" with – the foreign product subject to dis crimination (i.e., solar cells 
and modules). The Appellate Body also noted the findings of the Panel that the DCR measures are 
"laws, regulations or requirements governing the procurement" of electricity2 and that the 
procurement of electricity is "by gove rnmental agencies".3  
 
After the adoption of the Appellate Body Report by the DSB on 14 October 2016, India issued a 
communication to the DSB dated 08 November 2016 , and subsequently at the meeting of the DSB 
                                                
1 Action by the Dispute Settlement Body, WT/DS456/13 circulated on 14 October 2016. 
2 Appellate Body Report, India-Solar Cells , para 5.42and fn. 152, referring to Panel Report,  India-Solar 
Cells, para 7.145.  
3 Appellate Body Report, India-Solar Cells , para 5.42 and fn. 153, referring to Panel Report, India-Solar 
Cells, para 7.151 . WT/DS456/20   
 
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  held on 23 November 2016, India announced its i ntention to implement the DSB 's 
recommendations and rulings in this dispute and stated that it would need a reasonable period of 
time in which to do so.  
 
On 16 June 2017, India and the United States informed the DSB that they had agreed that the 
reasonable  period of time to implement the DSB's recommendations and rulings would be 
14 months. Accordingly, the reasonable period of time ( "RPT") was set to expire on 
14 December  2017.4 
 
On 14 December 2017, pursuant to Article 21.6 of the DSU , the delegation of India circulated a 
status report to the Chairperson of the DSB , in which it stated that India has ceased to impose any 
measures found inconsistent in the DSB 's recommendations  and rulings , and has complied with 
the said recommendations  and rulings .5 
 
On 20 December 2017, the United States made a request pursuant to Article 22.2 of the DSU 
seeking authorization from the DSB to suspend tariff concessions under the covered agreements.6 
India objected to this request vide its communication dated 03 January 2018 to the Chairperson of 
the DSB, under  Article 22.6 of the DSU .7 In its objection, India highlighted that the United States ' 
request was not a valid request under Article 22.2 of th e DSU in the absence of initiation of the 
negotiations on compensation, and its failure to specify either any specific element of non -
compliance or the proposed level of suspension of concessions.  
 
In the event of any disagreement between the parties with  respect to "the consistency with a 
covered agreement of measures taken to comply with the recommendations and rulings" ,8 the 
logical course of action is first to have recourse to Article 21.5 of the DSU. Since India considers 
that it has brought itself in to full compliance with its WTO obligations and the United States 
appears to disagree  in its communication of 19 December, 2017 , the issue of compliance must be  
decided following the procedures of Article 21.5 of the DSU. In the circumstances of this dispu te, 
therefore, India seek s recourse to Article 21.5 of the DSU to resolve the disagreement over 
compliance.  
 
2. IMPLEMENTATION ACTION BY INDIA  
 
There is no law or regulation in India mandating DCRs for solar cells and modules. The Panel while 
analyzing the  DCR measures at issue, noted that the NSM is being implemented in several 
successive "Phases " with each phase being further sub-divided into several "Batches. "9 The 
United  State s had based its panel request on Phase I (Batch 1), Phase I (Batch 2), and Phase II 
(Batch 1 -A) of India's NSM. 
As noted by the Panel, the Ministry of New and Renewable Energy of India ( "MNRE ") is the Indian 
central government  ministry responsible for "all matters relating to renewable en ergy."10 The 
Panel noted that with regard to the three Batches under its consideration, MNRE had issued the 
Guidelines documents setting forth the terms and conditions governing each of the three Batches. 
Under the  first two Batches, i.e. Phase I (Batch 1) and Phase I (Batch 2), MNRE selected NTPC 
Vidyut Vyapar  Nigam Limited ( "NVVN ") to act as the agency responsible for implementing the 
solar power project  selection process, including but not limited to issuing the Request for Selection 
document  governing se lection of solar power projects. NVVN served as the government party in 
the individually executed PPAs. For Phase II (Batch 1), MNRE selected the Solar Energy 
Corporation of  India ( "SECI") to perform the same functions that NVVN performed in respect of 
Phase I.11 
                                                
4 Communication from India and the United States concerning Article 21.3(b) of the DSU, WT/DS456/16  
dated 16 June 2017.  
5 Status Report by India, WT/DS456/17  dated 14 December 2017 . 
6 Recourse to Article 22.2 of the DSU by the United States, WT/DS456/18 circulated on 20 December 
2017.  
7 Recourse to Article 22.6 of the DSU by India, WT/DS456/19 circulate d on 08 January 2018 . 
8 Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes . 
9 Panel Report, India-Solar Cells , para 7.3 . 
10 Panel Report, India-Solar Cells , para 7.4 . 
11 Panel Report, India-Solar Cells , para 7.4 . WT/DS456/20   
 
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  The Panel noted that the scope of the DCR measures varied across batches .12 The Panel  also 
recorded in its Report that the Guidelines would have no legal impact if no action were taken after 
the Batch was  initiated, i.e. if there were no subsequent bidding/selection processes.13 
In this connectio n, India submits the following:  
As recorded in paragraph 7.14 of the Panel Report (DS/456/R, dated 24 February 2016):  
(a) In Batches 1 and 2 of Phase I of the NSM,  PPAs for 140 MW were entered into under 
the DCR m easures, and PPAs of 330 MW were entered into with imported cells and 
modules.  
(b) In Batch 1A of Phase II of the NSM, PPAs for 375 MW were entered into under the DCR 
measures.  
Of the above, in Batch 1A of Phase II, only PPAs for  355 MW were eventually commiss ioned under 
the DCR measures, and there were additional 325 MW which involved imported solar cells and 
modules.  
 
At the time of the Panel and Appellate Body hearings, there were several other projects , in respect 
of which Guidelines and Request for Selecti on documents had been issued using the DCR 
measures, and which were at various stages of tendering and selection. The details of these 
projects are given below:  
a) On 10.03.2015, MNRE had issued the  "Guidelines for Selection of 3000 MW Grid -
Connected Solar P V Power Projects under Batch -II for State Specific Bundling Scheme ." 
The implementing agency for these Guidelines was NTPC Ltd. (a Government owned 
company which is also the parent company of NVVN),14 and accordingly NTPC Ltd. issued 
the Request  for Selecti on documents dated 21.05.201 5,15 03.07.2015,16 09.10.201517 and 
16.06.201618. 
b) On 04.08.2015 MNRE had issued the "Guidelines for Implementation of Scheme for Setting 
up of 2000 MW Grid -connected Solar PV Power Projects under Batch -III – State Specific 
VGF Scheme " pursuant to which SECI issued the Request for Selection documents dated 
15.02.201619 and 24.02.201620. 
c) On 14.03.2016, MNRE had issued the "Guidelines for Implementation of Scheme for 
Setting up of over 5000 MW Grid -connected Solar PV Power Projects under Batch -IV", 
pursuant to which SECI issued Request for Selection document dated 22.04.2016 .21 
Pursuant to the adoption of the DSB recommendations and rulings, India held stakeholder 
consultations and took steps to ensure swift compliance with the same . With regard to the 
Guidelines and Request for Selection documents identified above, which had been at various 
stages of tendering and selection at the time of the adoption of the DSB recommendation s and 
rulings , the following PPAs were entered into:  
                                                
12 Panel Report, India-Solar Cells , para 7.7 . 
13 Panel Report, India-Solar Cells , para 7.11 . 
14 The Panel had noted in para 7.5 that NTPC is a state -owned entity of which NVVN is a wholly -owned 
subsidiary.  
15 Request For Selection Document For Grid Connected So lar Photo Voltaic Projects Under Batch -II 
Tranche -I Of National Solar Mission Phase - II (State Specific Bundling Scheme) For Gani -Sakunala Solar Park 
Phase -II in Andhra Pradesh , NTPC Limited (21 May 2015) . 
16 Request For Selection Document For Grid Connecte d Solar Photo Voltaic Projects Under Batch -II 
Tranche -I Of National Solar Mission Phase - II (State Specific Bundling Scheme) (Non Solar Park – DCR 
Category) in Rajasthan , NTPC Limited (03 July 2015) . 
17 Request For Selection Document For Grid Connected Sola r Photo Voltaic Projects Under Batch -II 
Tranche -I Of National Solar Mission Phase - II (State Specific Bundling Scheme) (Non Solar Park – DCR 
Category) in Telangana , NTPC Limited (09 October 2015) . 
18 Request For Selection Document For Grid Connected Solar P hoto Voltaic Projects Under Batch -II 
Tranche -I Of National Solar Mission Phase - II (State Specific Bundling Scheme) For Pavagada Solar Park 
(Under DCR Category) in Karnataka , NTPC Limited (16 June 2016) . 
19 Request For Selection Document For 1000 MW Grid Connected Solar Photo Voltaic Projects Under 
JNNSM Phase -II Batch -III Tranche -V in Karnataka, Solar Energy Corporation of India Ltd. (15 February 2016) . 
20 Request For Selection Document For 50 MW Grid Connect ed Solar Photo Voltaic Projects Under JNNSM 
Phase -II Batch -III Tranche -I in Maharashtra, Solar Energy Corporation of India Ltd. (24 February 2016) . 
21 Request For Selection Document For 250 MW Grid Connected Solar Photo Voltaic Projects Under 
JNNSM  Phase -II Batch -IV Tranche -I in Gujarat Solar Park at Charanka , Solar Energy Corporation of India Ltd. 
(22 April  2016) . WT/DS456/20   
 
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  (a) 150MW in the State of Andhra Pradesh (Kurnool Solar Park), in March 2016.  
(b) 100 MW in the State of Rajasthan, in June 2016.  
(c) 50 MW in the State of Maharashtra, in July 2016.  
(d) 50MW in the State of Telangana, in July 2016.  
(e) 50 MW in the State of Karnataka, in Augus t 2016.  
(f) 25 MW in the State of Gujarat, in December 2016 .  
(g) 100MW in the State of Karnataka, in December 2016.  
 
India confirms that after December 2016 , there have been no PPAs pursuant to Guidelines and 
Request for Selection documents requiring DCR measure s determined to be inconsistent under the 
DSB recommendations  and rulings . 
 
Apart from the aforementioned projects, some projects which were initially  envisaged under 
DCR measures, were cancelled  by the MNRE  on the basis of assessments that these may not be 
completed within the RPT. These include projects cumulating to capacity of 300 MW that were to 
be undertaken by SECI, and 250 MW that was to be undertaken by NTPC Limited.  
 
Thus, India would like to state and affirm that  in order to comply with the recommendations and 
rulings of DSB in this dispute, it has: (a) taken all appropriate steps to bring its measures into 
compliance with the DSB recommendations and rulings ; (b) no PPAs under the DCR measures 
have been entered into after December 2016 ; (c) some projects that were initially contemplated 
with the DCR measures, have been cancelled; and ( d) India no longer enters into any PPAs 
involving  the DCR measures. This removes the basis for  any inconsistency of India 's measures, 
with Article III:4 of  the GATT 199 4 and Article 2.1 of TRIMs . Therefore, as of the date of expiry of 
the RPT on 14 December 2017, India is fully compliant with its WTO obligations.  
 
As spe cified in India 's communication  under Article 21.6 of the DSU, India is fully compliant with 
the recommendations and rulings of the DSB.22 
 
3.  REQUEST FOR THE ESTABLISHMENT OF PANEL UNDER ARTICLE 21.5 OF THE DSU  
 
India requests that a Panel be established pursuant to Article 21.5 of the DSU, with the standard 
terms of reference as set forth in Article 7.1 of the DSU , to resolve the disagreement between 
India and the United States as regards India 's compliance with the recommendations and rulings 
of the DSB . India also requests that the DSB  refer the matter to the original Panel, if possible.  
 
As India has complied with the DSB recommendations and rulings in this dispute , prompt findings 
by the DSB will assist the parties in securing a positive solution to the dispute.  
 
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22 Status Report by India, WT/DS456/17 dated 14 December 2017 .