WORLD TRADE  
ORGANIZATION   
WT/DS412/8 
WT/DS426/7 25 May 2012 
 
(12-2761) 
 Original:   English 
  
 
CANADA – CERTAIN MEASURES AFFECTING THE RENEWABLE  
ENERGY GENERATION SECTOR 
 
CANADA – MEASURES RELATING TO THE FEED-IN TARIFF PROGRAM 
 
 
Communication from the Panels 
   The Panels have asked the Chairperson of th e Dispute Settlement Body ("DSB") to circulate 
to the Members for their information, the follo wing communication dated 23 May 2012 from the 
Chairperson of the Panels to the Chairperson of the DSB.  
_______________ 
 
 
 On 4 November 2011, Canada submitted to th e Panel in DS412 a request for a preliminary 
ruling concerning the consistency of Japan's request for the establishment of a Panel (WT/DS412/5) with Article 6.2 of the Dispute Settlement Understanding ("DSU"). 
  On 20 January 2012, a Panel was established in DS426 pursuant to the European Union's 
request for the establishment of a Panel (WT/DS426/5) .  On 24 January 2012, a Panel was constituted 
in DS426, with the same members serving as th e Panel in DS412 (WT/DS426/6/Rev.1).  Following 
consultations with the parties, the Panels in the two disputes decided to harmonize their timetables to 
the greatest extent possible, in accordance with Article 9.3 of the DSU.     On 14 February 2012, Canada submitted to th e Panel in DS426 a request for a preliminary 
ruling concerning the consistency of the European  Union's request for the establishment of a Panel 
(WT/DS426/5) with Article 6.2 of the DSU.   On 11 May 2012, the Panels issued the enclosed preliminary rulings to the parties.  The preliminary rulings will become an integral part of the Panel's final report, subject to any changes that 
may be necessary in the light of comments received from the parties during Interim Review. 
  After consulting the parties to the disputes, the Panels decided to inform the DSB of the 
content of its preliminary rulings.  Therefore, I w ould be grateful if you would circulate the body of 
this letter and the enclosed preliminary rulings as document WT/DS412/8-WT/DS426/7. 
 
_______________ 
 
 WT/DS412/8 
WT/DS426/7 Page 2 
 
 
   
PRELIMINARY RULINGS BY THE PANELS 
  
1. Arguments of the Parties 
(i) Canada 
1. Canada asks the Panel to make a preliminary ruling on the consistency of the separate panel 
requests ("Panel Requests" collectively, and "Panel  Request" individually) pr esented by Japan and the 
European Union ("the Complainants") in DS412 and DS426 with the standards of clarity set out in 
Article 6.2 of the Dispute Settleme nt Understanding ("DSU").  Accord ing to Canada, the claims under 
the SCM Agreement described in the two Panel Request s fail to provide a "brief summary of the legal 
basis" that is "sufficient to present the problem cl early", and should therefore be struck out of the 
Panel's terms of reference.
1 
2. Canada argues that the Complainants' Panel Requ ests do not identify the requisite legal bases 
in a manner sufficient to present the problem clearly  because they fail to properly describe the nature 
and type of the alleged subsidy that is being cha llenged.  In particular, Canada observes that although 
a measure cannot breach Article 3 of the SCM Agre ement unless a subsidy has been found to exist, 
the description found in the respective Pane l Requests of the Complainants' claims under 
Articles 3.1(b) and 3.2 of the SCM Agreement "does not identify the constituent elements of the alleged 'subsidy' … and does not even cite the spec ific sub-paragraphs of Article 1.1" upon which 
those claims are based.
2  Thus, Canada asserts that the Panel Requests do not identify the particular 
"financial contribution" that is at issue, "what government or public body and, if relevant, private 
body was involved in the financial contribution,  and how and to whom a benefit was thereby 
conferred."3  According to Canada, such specific informa tion about the nature a nd type of an alleged 
subsidy that is being challenged in  WTO dispute settlement proceedings has been clearly identified in 
panel requests pertaining to a number of previous disputes.4   
3. Canada explains that, pursuant to the due process requirement present in Article 6.2 of the 
DSU, a defending party is entitled to know what case it has to answer, and what violations have been 
alleged so that it can begin preparing its defence.5  In this regard, Canada  notes that the Appellate 
Body reiterated in China – Raw Materials  that the legal summary required by Article 6.2 of the DSU 
must "explain succinctly how or why the measure at issue is considered by the complaining Member 
to be violating the WTO obligation in question".6  In Canada's view, the Complainants' Panel 
Requests, by merely alleging that "the measures are subsidies", do not allow Canada to understand the 
                                                      
1 Canada, Request for a Preliminary Ruling (DS 412), paras. 2 and 25; Canada, First Written 
Submission (DS412), paras. 102-113; Canada, Letter to the Panel of 14 February 2012 (DS426); and Canada, 
First Written Submission (DS426), paras. 48-50.  
2 Canada, Request for a Preliminary Ruling (DS412), para. 8; Canada, Letter to the Panel of 
14 February 2012 (DS426). 
3 Canada, Request for a Preliminary Ruling (DS412), paras. 2, 10, 14, and 18; Canada, Letter to the 
Panel of 14 February 2012 (DS426). 
4 Canada, Request for a Preliminary Ruling (DS412), paras. 11-13, referring to EC and Certain 
Member States ‒ Large Civil Aircraft ; US ‒ Large Civil Aircraft ; Korea ‒ Commercial Vessels ; US ‒ 
Agriculture Subsidies ; China ‒ Taxes ; Canada, Letter to the Panel of 14 February 2012 (DS426). 
5 Canada, Request for a Preliminary Ruling (DS412), paras. 15-18, quoting the Appellate Body Report, 
Thailand ‒ H-Beams , para. 88, and Panel Reports, Canada ‒ Wheat Exports and Grain Imports , para. 6.10, 
subpara. 28, and Japan ‒ DRAMs (Korea) , para. 7.9; Canada, Letter to the Panel of 14 February 2012 (DS426). 
6 Canada, Letter to the Panel of 14 February 2012 (DS426).  WT/DS412/8 
 WT/DS426/7 
 Page 3 
 
 
  legal bases of their claims, leaving Canada to  guess what the alleged "subsidy" might be.7  Thus, 
Canada submits that the Complainants' deficient Pa nel Requests have prejudiced its ability to prepare 
a defence to their claims.8 
(ii) Japan 
4. Japan submits that Canada's arguments are "d eeply flawed" because they effectively read 
Article 6.2 of the DSU as requiring not only a "brief summary of the legal basis of the complaint", but also a summary of the arguments supporting the clai m being made in a panel request.  According to 
Japan, the latter is not intended to be the purpose of  a panel request, but is instead the subject of the 
detailed submissions beginning with the co mplaining party's first written submission.
9  Relying on 
certain statements made by panels in previous disputes, Japan argues that Canada's request for a 
preliminary ruling blurs the distinct and well recognized roles of a panel request, on the one hand, and the parties' detailed written and or al submissions, on the other hand.
10 
5. Moreover, in demanding that a panel request must  clearly identify the elements of a subsidy, 
namely, the financial contribution and the benef it, Canada is, according to Japan, confusing the 
"significant difference" that the Appellate Body has explained exists "between the claims  identified in 
the request for the establishment of a panel, wh ich establish the panels terms of reference under 
Article 7 of the DSU, and the arguments  supporting those claims".11  In this light, Japan argues that 
the information Canada asserts must be included in Jap an's Panel Request is, in effect, the details of 
Japan's argument about why the measures at issue m eet the definition of "subsidy".  However, Japan 
sees such information to constitute an argument , not a legal claim , as no legal claim arises 
independently from satisfying the terms of Article 1.1 of the SCM Agreement .  Japan recalls that the 
Appellate Body explained that "a rguments" constitute the details of what a complaining party adduces 
"to demonstrate that the responding party’s measur e does indeed infringe upon the identified treaty 
provision".12  Japan points out that, in the present dispute, its claim  is that there is a violation of 
Articles 3.1(b) and 3.2 of the SCM Agreement.  To  establish this claim, Japan argues that it must 
demonstrate that the measure qualifies as a "subsid y" within the meaning of Article 1.1 of the 
SCM Agreement .  In Japan's view, this latter factor is part of the argument necessary to demonstrate 
the legal claim under Articles 3.1(b) and 3.2.  Accord ing to Japan, it is not an independent claim, and 
therefore cannot be part of the legal basis of its complaint.13 
6. In any case, Japan argues that a reading of its Panel Request as a whole makes evident that: (i) 
a "financial contribution" within the meaning of any of the sub-paragraphs of Article 1.1(a)(1) or "any 
form of income or price support" within the meanin g of Article 1.1(a)(2) results from the "guaranteed, 
long-term pricing" under the province of Ontari o's FIT Programme; (ii) the entities involved in 
providing that "financial contribution" or "inc ome or price support" include the government of 
Canada, the government of Ontario, the OPA, and th e IESO; and (iii) the "financial contribution" or 
"income or price support" confer te rms more advantageous than availa ble on the market to "renewable 
                                                      
7 Canada, Request for a Preliminary Ruling (DS412), paras. 8, 14, and 18; Canada, Letter to the Panel 
of 14 February 2012 (DS426). 
8 Canada, Request for a Preliminary Ruling (DS412), paras. 15-16; Canada, Letter to the Panel of 
14 February 2012 (DS426). 
9 Japan, Response to Canada's Request for a Preliminary Ruling, para. 4.  
10 Japan, Response to Canada's Request for a Preliminary Ruling, para. 11, referring to Panel Reports, 
Australia – Apples , para. 7.929; EC – Trademarks and Geographical Indications (US) , para. 7.2.20. 
11 Appellate Body Report, Thailand – H-Beams , fn. 36, quoted in Japan, Response to Canada's Request 
for a Preliminary Ruling, para. 16. 
12 Appellate Body Report, US – Oil Country Tubula r Goods Sunset Reviews , para. 162 (quoting 
Appellate Body Report, Korea – Dairy , para. 139). 
13 Japan, Response to Canada's Request for a Preliminary Ruling, para. 21. WT/DS412/8 
WT/DS426/7 Page 4 
 
 
  energy generation facilities".  Thus, Japan asserts that  its panel request identifies that "the measures 
are subsidies within the meaning of Article 1.1 of the SCM Agreement".
14 
7. Finally, Japan submits that because its Panel Re quest both "identif[ies] the specific measures 
at issue" and "provide[s] a brief summary of the le gal basis of the complaint sufficient to present the 
problem clearly", there is no basis for the Panel to find that Canada has been prejudiced in preparing 
its defence.15   
(iii) European Union16 
8. The European Union asks the Panel to reject Canada's request for a preliminary ruling, 
arguing that it is "entirely without merit".17 
9. The European Union does not share Canada's view that the only manner to present the 
problem clearly in accordance with Article 6.2 of th e DSU in a dispute where a measure is alleged to 
be a subsidy under Article 1.1 of the SCM Agreem ent is by providing details about each of the 
elements included therein.  The European Union expl ains that the word "subsidy" is a defined term, 
and no consequences arise from a measure falling within that definition.  According to the 
European Union, it is only when a "subsidy" is d eemed to be prohibited or causes adverse effects that 
the subsidy in question can be considered to vi olate the SCM Agreement.  The European Union 
argues that the moment a Me mber identifies a measure as being a "subsidy" under the 
SCM Agreement, it alerts the allegedly subsidizing Member that a particular measure can be deemed 
as a subsidy and may violate Articles 3 or 5 of the SCM Agreement. Thus, the European Union 
submits that the "problem" is presented clearly when a panel request specifies that the measure that is 
considered to be a subsidy violates the obliga tions contained in Articles 3 or 5 of the SCM 
Agreement.18 
10. In any event, the European Union states that  it fails to understand the basis for Canada's 
request for a preliminary ruling.  Even assuming that  an obligation exists to specify how the measure 
at issue can be characterised as a subsidy, the Eur opean Union alleges that its Panel Request was not 
in this respect deficient.  In particular, the Europ ean Union points out that its Panel Request explained 
that the measure at issue provides guaranteed, ab ove-market long-term pricing for the output of 
certain renewable energy generation facilities (wind and solar) – or, in other words, that there is price 
support/financial contribution ("guaranteed… pricing" ), which confers a benefit ("above-market") to 
the recipients (i.e., the FIT Generators).  In additi on, the European Union notes that its Panel Request 
identifies the entity providing the subsidy, i.e., th e Government of Ontario ("Canadian province of 
Ontario").19 
11. Finally, the European Union questions to what ex tent any alleged lack of clarity in its Panel 
Request could have caused any prejudice to Canada in the present dispute.  In this regard, the 
European Union argues that in view of the similarities between DS412 and DS426, by the time the European Union requested the establishment of th e Panel in DS426, Canada had already exchanged 
                                                      
14 Japan, Response to Canada's Request for a Preliminary Ruling, para. 15. 
15 Japan, Response to Canada's Request for a Preliminary Ruling, para. 35. 
16 The European Union's arguments in response to Canada's Request for a Preliminary Ruling in DS426 
were set out in its own separate submission (European Union, Response to Canada's Request for a Preliminary 
Ruling), and incorporated Japan's response to Canada's Request for a Preliminary Ruling in DS412, as well as the arguments the European Union made in this regard  as a third party in DS41 2.  See European Union, 
Response to Canada's Request for a Preliminary Ruling, para. 3. 
17 European Union, Response to Canada's Request for a Preliminary Ruling, para. 3. 
18 European Union, Response to Canada's Request for a Preliminary Ruling, para. 11. 
19 European Union, Response to Canada's Request for a Preliminary Ruling, para. 12.  WT/DS412/8 
 WT/DS426/7 
 Page 5 
 
 
  first written submissions with Japan and was aware of  the European Union's views as a third party in 
that dispute.20 
2. Arguments of the Third Parties 
(i) European Union  
12. As a third party in DS412, the European Union agrees with Japan that Canada's request for a 
preliminary ruling in DS412 is unwarranted.  The Eu ropean Union argues that the identification of a 
measure within the meaning of Article 6.2 of the DSU need only be framed with sufficient particularity so as to indicate the nature of the measu re and the gist of what is at issue. Moreover, the 
European Union submits that a brief summary of  the legal basis of the complaint required by 
Article 6.2 of the DSU aims to explain succinctly ho w or why the measure at issue is considered by 
the complaining Member to be violating the WTO ob ligation in question.  This brief summary must 
be sufficient to present the problem clearly.  In both respects, the European Union considers that, 
when read "as a whole", Japan's Panel Request iden tified the specific measures at issue and provided a 
brief summary of the legal basis of the comp laint, as required by Article 6.2 of the DSU.
21 
(ii) Japan 
13. Relying on essentially the same arguments it presented as a party in DS412, Japan submits, as 
a third party in DS426, that Canada's request for a preliminary ruling in DS426 has no merit.22  
Moreover, in Japan's view, the European Union's Pa nel Request clearly identifies the "problem" with 
respect to the SCM Agreement that is caused by the enumerated measures relating to the FIT 
Programme – that is, the FIT measures are "subsidies" as defined in Article 1.1 of the 
SCM Agreement, that are "provided contingent upon the use of domestic over imported goods", and 
thereby are inconsistent with Articles 3.1(b) and 3.2 of the SCM Agreement.   According to Japan, 
Canada's citation of the Appellate Body in China – Raw Materials  – that the legal summary required 
by Article 6.2 of the DSU must "explain succinctly how or why the measure at issue is considered by 
the complaining Member to be violating the WTO oblig ation in question" – must be read in context of 
the facts in that dispute, and that when it is so read it supports a finding in DS426 that the European 
Union's Panel Request satisfies the requirements of Article 6.2 of the DSU.23 
(iii) Korea 
14. Korea submits that Canada has not presented a sufficient basis for dismissing Japan's claims 
under the SCM Agreement in DS412.  Korea recalls th at the Appellate Body has previously held that, 
in the absence of prejudice to the defending party,  a simple listing of measures and relevant treaty 
provisions may in some cases be sufficient to satis fy the requirements of Article 6.2 of the DSU.24  
Moreover, Korea observes that the Appellate Body has stated that the "procedural rules of WTO 
dispute settlement are designed to promote, not th e development of litigation techniques, but simply 
                                                      
20 European Union, Response to Canada's Request for a Preliminary Ruling, footnote 6. 
21 European Union, Third Party Writte n Submission (DS412), paras. 9-12. 
22 Japan, Third Party Written Submission (DS426), para. 3. 
23 Japan, Third Party Written Submission (DS426), paras. 10-11. 
24 Korea, Third Party Written Submission (DS412), pa ra.  9, referring to Appellate Body Report, Korea 
– Dairy , paras. 124 and 127. WT/DS412/8 
WT/DS426/7 Page 6 
 
 
  the fair, prompt and effective resolution of trade disputes".25  Korea "does not believe that allowing 
Japan's claims under the SCM Agreement to go fo rward would be inconsistent with that goal."26  
(iv) Mexico 
15. Mexico considers that the Complainants' Panel Requests in DS412 and DS426 comply with 
the requirements of Article 6.2 of the DSU in th at they each identify the government authority 
responsible for granting the alleged subsidy (the go vernment of Canada or the province of Ontario), 
the financial contribution at issue (in the form of guaranteed, long-term prices for electricity produced 
from renewable generators), and the benefit (the guar anteed prices).  Mexico observes that there have 
been requests for panels to make preliminary ru lings on the consistency of panel requests with 
Article 6.2 in a number of recent disputes, and cau tions that such requests should not be used as a 
litigation tactic to gain procedural advantages.27 
(v) United States 
16. The United States considers that the Complainants' Panel Requests in DS412 and DS426 
satisfy the standard of clarity that is required by  Article 6.2 of the DSU.  The United States explains 
that the Complainants' Panel Requests provide a brie f summary of the legal bases of their complaints 
by setting forth their view that the measures viol ate provisions of the WTO Agreement "because they 
constitute a prohibited subsidy, and also discrim inate against equipment for renewable energy 
generation facilities produced outside Ontario", identifying the specific provisions of the WTO Agreement that they believe are violated.  The United States agrees with the Complainants that 
Article 6.2 of the DSU does not require them to set out their arguments as to why the measures meet 
the definition of subsidy.  Rather, according to the United States, all that the Complainants are 
required to state is the legal bases of their co mplaints, which in its view, they have done.
 28 
3. Analysis 
17. The focus of Canada's request for a preliminary ruling in both disputes is the alleged lack of 
clarity in the legal bases  supporting the Complainants' subsidy complaints, as presented in the 
respective Panel Requests.  Importantly, Canada  does not take issue with the Complainants' 
descriptions of the relevant measures, nor their references to Articles 3.1(b) and 3.2 of the SCM Agreement.  Thus, Canada does not question the clarity of the Complainants' allegations that the 
measures at issue are inconsistent with Articles 3.1(b) and 3.2 of the SCM Agreement.  Rather, 
Canada's concern relates to the lack of detail with  which the Complainants' have chosen to describe 
these allegations, and in particular, the statement made in both Panel Requests that the measures at 
issue are inconsistent with Articles 3.1(b) and 3.2 of the SCM Agreement, because they are " subsidies 
within the meaning of Article 1.1 of the SCM Agreement  that are provided contingent upon the use of 
domestic over imported goods".
29  According to Canada, this description of the Complainants' claims 
is overly general and provides little, if any, valuable  insight into the constituent elements of the 
subsidies being challenged, as defined in Article 1.1 of the SCM Agreement.  In Canada's view, 
whenever a claim is made under Articles 3.1(b) an d 3.2 of the SCM Agreement, such information 
must be found in a panel request in order for it to "explain succinctly how or why the measure at issue 
                                                      
25 Korea, Third Party Written Subm ission (DS412), para. 9, referring to Appellate Body Report,  
Thailand – H-Beams, para. 97.  
26 Korea, Third Party Written Submission (DS412), para. 9. 
27 Mexico, Third Party Written Submissions (DS412 & DS426), paras. 5-15. 
28 United States, Third Party Written Submi ssions (DS412 & DS426), paras. 23-24. 
29 Japan, Panel Request, p. 3 (emphasis added); European Union, Panel Request, p. 3 (emphasis added).   WT/DS412/8 
 WT/DS426/7 
 Page 7 
 
 
  is considered by the complaining Member to be violating the WTO obligation in question",30 and for 
it to thereby comply with the requirement in Article  6.2 of the DSU to provide a "brief summary of 
the legal basis of the complaint suffi cient to present the problem clearly". 
18. Canada submits that the Complainants' Pane l Requests should have contained information 
about the constituent elements of the alleged subsid ies at issue.  Canada does not dispute the position 
taken by the Complainants that Article 1.1 of th e SCM Agreement is a purely definitional provision, 
upon which it is impossible to base an independent cl aim of violation of the SCM Agreement.  Rather, 
the essence of Canada's submission is that beca use the notion of subsid y is integral to the 
establishment of the Complainants' claims under Arti cles 3.1(b) and 3.2 of the SCM Agreement, the 
definition of a subsidy contained in Article 1.1 must form part of the legal basis  of the respective 
complaints, and therefore, its constituent elements must be clearly identified in the respective Panel 
Requests in order to "present the problem clearly ".  As Canada puts it: "… a Member cannot breach 
its obligation in Article 3.1(b) unless it has provi ded a subsidy.  Consequently, a Complaining 
Member cannot provide the 'legal basis of the clai m' based on 'subsidies contingent […] upon the use 
of domestic over imported goods' unless it identifies fro m Article 1.1(a) which form of subsidy has 
been provided".31  
19. In our view, Canada's interpretation of the scope  of Members' obligations under Article 6.2 of 
the DSU confuses the distinction between claims  made in a panel request and the arguments  that must 
be made in support of those claims in subseque nt submissions during the course of a proceeding. 
20. It is well established that the requirement in Article 6.2 of the DSU to provide a "brief 
summary of the legal basis of the complaint suffici ent to present the problem clearly" refers to the 
description found in a panel request of the nature of a party's claims , not its arguments.32  A "claim" is 
an allegation "that the respondent party has violated, or nullified or impaired th e benefits arising from, 
an identified provision of a particular agreement".33  On the other hand, an "argument" comprises the 
statements made in support of a claim to demons trate that a responding party's measure infringes an 
identified treaty provision.  These are "set out and progressively clarified in the first written 
submissions, the rebuttal submissions and the firs t and second panel meetings with the parties".34 
21. In the present instance, the Complainants allege  that Canada has acted inconsistently with 
Articles 3.1(b) and 3.2 of the SCM Agreement.  We  accept the proposition that, in order to establish a 
breach of Articles 3.1(b) and 3.2 of the SCM Agreement, a complainant must first demonstrate that a subsidy exists within the meaning of Article 1 of the SCM Agreement.   However, we do not consider 
this to mean that all elements of Article 1 need to  be specifically identified and articulated in order to 
                                                      
30 Canada, Letter to the Panel of 14 February 2 012 (DS426), referring to Appellate Body Report, 
European Communities – Selected Customs Matters , para. 130; and Appellate Body Report, China – Raw 
Materials , para. 226. 
31 Canada, First Written Submission (DS412), pa ra. 111; and Canada, Letter to the Panel of 
14 February 2012 (DS426). 
32 Appellate Body Report, Guatemala – Cement I , para. 72 ("the legal basis of the complaint" could 
also be referred to as "the claims"); and Appellate Body Report, EC – Bananas III , paras. 141-143 ("Article 6.2 
of the DSU requires that the claims , but not the arguments , must all be specified suffi ciently in the request for 
the establishment of a panel in order to allow the defending  party and any third parties to know the legal basis of 
the complaint").  Similar statements can be found in Appellate Body Report, EC – Selected Customs Matters , 
para. 153; and Appellate Body Report, India – Patents (US) , para. 88; Appellate Body Report, Korea – Dairy , 
para. 139; and Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 121. 
33 Appellate Body Report, Korea – Dairy , para. 139.  See also Panel Report, Egypt – Steel Rebar , 
para. 7.58. 
34 Appellate Body Report, Korea – Dairy , para. 139.  See also Panel Report, Egypt – Steel Rebar , 
para. 7.58. WT/DS412/8 
WT/DS426/7 Page 8 
 
 
  "present the problem clearly".  Article 1 of the SCM Agreement is a defin itional provision, which 
implies that it cannot be the legal basis for a  claim of violation  of the SCM Agreement.  Indeed, the 
mere fact that a Member may provide subsidies that  fall within the scope of Article 1 does not place 
that Member in contravention of the SCM Agreement.   The violation – if there be one – will emanate 
from a breach of Article 3.1(b) or 3.2 of the SCM Agreement.   
22. Moreover, in the same way that a breach of Articles 3.1(b) and 3.2 cannot be established 
without demonstrating the existence of a subsidy, so too is it necessary to show, for example, that any 
particular subsidy has been: (i) granted or maintain ed; (ii) contingent upon; (iii) the use of domestic 
over imported goods.  Thus, in terms of making out a case of inconsistency with Articles 3.1(b) and 
3.2, establishing the existence of a subsidy within the meaning of Article 1 is only one of several 
"requirements" or "conditions" that must be satisfied.  In this light, Canada's line of argument, when 
taken to its logical conclusion, implies that in orde r to comply with Article 6.2 of the DSU, a panel 
request that contains a complaint made under Artic les 3.1(b) and 3.2 of the SCM Agreement must 
provide an explanation about not only the type of  subsidy at issue, but also the granting or 
maintaining of that subsidy, the use of domestic over imported goods, and the notion of contingency.  
However, as we see it, information about each of these elements – elements that are equally critical to 
demonstrating a violation of Article 3.1(b) and 3.2 of the SCM Agreement – will be the precise 
subject matter of the arguments  that must be made in support of such a claim in subsequent 
submissions to the panel. 
23. In addition, we observe that the Complain ants' Panel Requests do contain contextual 
information about the subsidies that are alleged to exist and which further clarifies the foundations of 
their complaints.  Each refers to the allegation that "prohibited subsidies " exist.  Each describes the 
nature of the alleged subsidy as involving "guaranteed, long-term pric ing for the output of renewable 
generation facilities" effected through the FIT Progra mme as well as the FIT and microFIT contracts, 
with the European Union additiona lly describing such pricing as "above-market".  The government 
entity involved in the provision of the alleged s ubsidies is identified as "the Canadian province of 
Ontario", and the recipients of the alleged subsidi es can also easily be ascertained by virtue of the 
reference to the individual FIT and microFIT contracts. 
24. Furthermore, each of the Panel Requests identifi es the various laws, rules, contracts, forms, 
documents and other descriptive materials said to constitute the measures.  As we have already 
mentioned, they are specifically described by each of the Complain ants in their Panel Requests as 
"prohibited subsidies".  Having been directed preci sely towards the measures, and by setting out the 
legal basis of the complaint in terms of the clai ms that are being made about those measures, we 
believe that the Panel Requests do present the proble m sufficiently clearly.  Canada had the necessary 
reference points to understand what Japan and the European Union will have to establish in order to 
prevail in their claims, and to prepare itself for the detailed first written submissions from the 
Complainants which will necessarily follow.  
25. Thus, in the light of the above discussion, we cannot agree with Canada's arguments 
concerning the lack of clarity in the Complainants ' Panel Requests, and in particular, the allegation 
that they fail to provide a "brief summary of the legal basis of the complaint sufficient to present the 
problem clearly".  In our view, the 
legal basis  of the complaints made under Articles 3.1(b) and 3.2 of 
the SCM Agreement is described with sufficient cl arity in the respective Panel Requests to "present 
the problem clearly" in compliance with the standard s of Article 6.2 of the DSU.  It enables the 
responding Party to properly prepare for the case atte nding the first submissions of the complaining 
Parties.  We therefore dismiss Canada's requests for preliminary rulings.   
__________