INDIA – MEASURES CONCERNING SUGAR AND SUGARCANE
Document: REPORTS OF THE PANELS Addendum
Date: 14 December 2021
Document codes: WT/DS579/R/Add.1; WT/DS580/R/Add.1; WT/DS581/R/Add.1; WT/DS579/R; WT/DS580/R; WT/DS581/R.
Complainant: Brazil
Respondent: India
Third parties: Australia, Canada, China, Colombia, Costa Rica, El Salvador, EU, Guatemala, Honduras, Indonesia, Japan, Panama, Russia, Thailand, U.S.
Dispute stage: Panel
Agreements cited: Art. 3.2, 3.3, 6.3, 7.2(b), 8, 9.1, 10.1  Agriculture

INDIA – MEASURES CONCERNING SUGAR AND SUGARCANE

REPORTS OF THE PANELS
Addendum

This addendum contains Annexes A to E to the Report s of the Panel s to be found in documents
, , and

 • •

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 5
Annex A-2 Additional Working Procedures for the Panel's First Substantive Meeting to be
Held by Remote Means
13
Annex A-3 Additional Working Procedures for the Panel's Second Substantive Meeting to
be Held by Remote Means
15
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Brazil 18
Annex B-2 Integrated executive summary of the arguments of Australia 37
Annex B-3 Integrated executive summary of the arguments of Guatemala 59
Annex B-4 Integrated executive summary of the arguments of India 83
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Canada 104
Annex C-2 Integrated executive summary of the arguments of China 108
Annex C-3 Integrated executive summary of the arguments of Costa Rica 110
Annex C-4 Integrated executive summary of the arguments of El Salvador 113
Annex C-5 Integrated executive summary of the arguments of the European Union 116
Annex C-6 Integrated executive summary of the arguments of Japan 119
Annex C-7 Integrated executive summary of the arguments of the United States 122
ANNEX D
COMMUNICATIONS BY THE PANEL REGARDING THE FIRST SUBSTANTIVE MEETING
Contents Page
Annex D-1 Panel's communication to the parties conveying its decision to hold two
substantive meetings, with the first substantive meeting to be held in a
"hybrid" format, as well as proposing the dates, and the adoption of draft
additional working procedures, for the first substantive meeting, dated 16
October 2020
128
Annex D-2 Panel's communica tion to the parties conveying its decision regarding the
format and the conduct of the first substantive meeting and adopting the
Additional Working Procedures for the Panel's First Substantive Meeting to be
Held by Remote Means, dated 2 November 2020

130
Annex D-3 Panel's communication to the parties addressing India's confidentiality queries
and request for postponement of the first substantive meeting, dated
6 November 2020
133
Annex D-4 Panel's communication to the parties and third parties regarding the
postponement of the first substantive meeting, dated 18 November 2020
135
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX E
PRELIMINARY RULING
Contents Page
Annex E-1 Preliminary Ruling by the Panel concerning India's allegedly expired
measures dated 9 November 2020
138
Annex E-2 Preliminary Ruling by the Panel concerning India's Marketing and
Transportation Scheme
149
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 5
Annex A-2 Additional Working Procedures for the Panel's First Substantive Meeting to be
Held by Remote Means
13
Annex A-3 Additional Working Procedures for the Panel's Second Substantive Meeting to
be Held by Remote Means
15
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX A-1
WORKING PROCEDURES OF THE PANEL1

Adopted on 5 December 2019

General

1. (1) In these proceedings, the Panel shall follow the relevant provisions of the Understanding
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the
following Working Procedures apply.
(2) Pursuant to Article 9.3 of the DSU, the timetables in DS579, DS580, and DS581 are
harmonized. The Panel shall, to the greatest possible extent, conduct a single panel process,
with a single record, resulting in separate reports contained in a single document, taking into
account the rights of all Members concerned and in such a manner that the rights that parties
or third parties would otherwise have enjoyed are in no way impaired.
(3) The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.
Confidentiality
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept
confidential. Members shall treat as confidential information that is submitted to the Panel
which the submitting Member has designated as confidential.
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party
or third party from disclosing statements of its own positions to the public.
(3) Upon request, the Panel may adopt appropriate additional procedures for the treatment
and handling of confidential information after consultation with the parties. Any request for
additional confidentiality procedures shall be made at the earliest possible opportunity, and
no later than 10 working days prior to the submission of any information that the requesting
party would seek to designate as confidential pursuant to such additional confidentiality
procedures.
Submissions
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall
submit a written submission in which it presents the facts of the case and its arguments, in
accordance with the timetable adopted by the Panel.
(2) Each party shall also submit to the Panel, before the second substantive meeting of the
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.
(3) Subject to the ordinary rules concerning burden of proof, a party wishing to incorporate
by reference or rely upon arguments and/or evidence submitted by another party or third
party may do so provided that it clearly identifies the specific arguments and/or evidence it
refers to and their source.
(4) If India wishes to file a single version of any written communication to the Panel,
including written submissions, any preliminary submissions and written answers to questions,

1 The Panels established in DS579, DS580, and DS581 are referred to collectively in these Working
Procedures as "the Panel".
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

for more or all of the three disputes, it may do so provided that it clearly identifies whether
arguments and/or evidence pertain to one, more, or all of the three disputes.
(5) Each third party that chooses to make a written submission before the first substantive
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by
the Panel. Each third party is encouraged to submit a single submission, clearly identifying the
dispute(s) to which its views relate.
(6) In the interest of full transparency and harmonization of the timetable in DS579, DS580,
and DS581, a complainant's first written submission in one dispute shall be deemed to be an
exercise of its third -party rights in the other two disputes. Arguments presented as a third
party only shall be clearly identified as such in the complainant's first written submission.
(7) The Panel may invite the parties or third parties to make additional submissions during
the proceedings, including with respect to requests for preliminary rulings in accordance with
paragraph 4 below.
(8) In the interest of full transparency and harmonization of the timetable in DS579, DS580,
and DS581, each party shall make its written communications to the Panel, including written
submissions, any preliminary submissions and written answers to questions available to the
parties in the other disputes at the time that they are submitted to the Panel.
Preliminary rulings
4. (1) If India considers that the Panel should make a ruling before the issuance of the Reports
that certain measures or claims in one or more of the panel requests or one or more of the
complainants' first written submissions are not properly before the Panel, the follow ing
procedure applies. Exceptions to this procedure shall be granted upon a showing of good
cause.
a. India shall submit any such request for a preliminary ruling at the earliest possible
opportunity and in any event no later than in its first written submission to the Panel. The
complainant or complainants shall respond to the request before the first substantive
meeting of the Panel, at a time to be determined by the Panel in light of the request.
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling
request before, during or after the first substantive meeting, or the Panel may defer a
ruling on the issues raised by a preliminary ruling request until it issues its Reports to the
parties.
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its
Reports, the Panel may provide reasons for the ruling at the time that the ruling is made,
or subsequently in its Reports.
d. Any request for such a preliminary ruling by India before the first meeting, and any
subsequent submissions of the parties in relation thereto before the first meeting, shall be
served on all third parties. The Panel may provide all third parties with an opportunity to
provide comments on any such request, either in their submissions as provided for in the
timetable or separately. Any preliminary ruling issued by the Panel before the first
substantive meeting on whether certain measures or claims are properly before the Panel
shall be shared with all third parties.
(2) This procedure is without prejudice to the parties' right to request other types of
preliminary or procedural rulings during the proceedings, and to the procedures that the Panel
may follow with respect to such requests.
Evidence
5. (1) Each party shall submit all evidence to the Panel no later than during the first
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

necessary for answers to questions or comments on answers provided by the other party.
Additional exceptions may be granted upon a showing of good cause.
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall
accord the other parties an appropriate period of time to comment on the new evidence
submitted.
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language,
the submitting party or third party shall simultaneously submit a translation of the exhibit or
relevant portion into the WTO working language of the submission. The Panel may grant
reasonable extensions of time for the translation of exhibits upon a showing of good cause.
(2) Any objection as to the accuracy of a translation should be raised promptly in writing,
preferably no later than the next submission or meeting (whichever occurs earlie r) following
the submission which contains the translation in question. Any objection shall be accompanied
by an explanation of the grounds for the objection and an alternative translation.
7. (1) To facilitate the maintenance of the record of the disputes and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the disputes, indicating the submitting Member and the number of each exhibit on
its cover page. Exhibits submitted by Brazil should be numbered BRA-1, BRA-2, etc. Exhibits
submitted by Australia should be numbered AUS -1, AUS -2, etc. Exhibits submitted by
Guatemala should be numbered GTM -1, GTM-2, etc. Exhibits submitted by India should be
numbered IND-1, IND-2, etc. If, for i nstance, the last exhibit in connection with the first
submission was numbered BRA-5, the first exhibit in connection with the next submission thus
would be numbered BRA -6. If a party withdraws an exhibit or leaves one or more exhibits
intentionally blank, it should indicate this on the cover page that provides the number of the
blank exhibit.
(2) To avoid duplication of exhibits, the parties may submit joint exhibits by numbering them
accordingly, for example as JE -1, JE-2, etc. Each party may also cross -refer to an exhibit
submitted by another party by using the number attributed to the exhibit by the party who
initially submitted it.
(3) Each party shall provide an updated list of exhibits (in Word or Excel format) together
with each of its submissions, oral statements, and responses to questions.
(4) If a party submits a document that has already been submitted as an exhibit by the
other party, it should explain why it is submitting that document again.
(5) If a party includes a hyperlink to the content of a website in a submission, and intends
that the cited content form part of the official record, the cited content of the website shall be
provided in the form of an exhibit along with an indication of the date at which it was accessed.
(6) Any publicly a vailable WTO document that is relied on by either party need not be
submitted as an exhibit, provided that the party indicates the document's official
WTO document symbol. Such publicly available WTO documents shall be deemed to form part
of the official record.
Editorial Guide
8. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy
provided).
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

Questions

9. The Panel may pose questions to the parties and third parties at any time, including:
a. Before any meeting, the Panel may send written questions, or a list of topics it intends
to pursue in questioning orally during a meeting. The Panel may ask different or additional
questions at the meeting.
b. In the interest of full transparency and harmonization of the timetable in DS579, DS580,
and DS581, the Panel shall make any written questions it sends to one or more parties in any
of the disputes available to the parties in the other disputes at the same time.
c. The Panel may put questions to the parties and third parties orally during a meeting,
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.
Substantive meetings

10. The Panel shall meet in closed session.
11. In the interest of full transparency and harmonization of the timetable in DS579, DS580, and
DS581, the parties agree that the substantive meetings referred to in paragraphs 15 and 16 shall
take place in the presence of the parties to all three disputes.
12. (1) Each party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the confidentiality of the proceedings and the
submissions of the parties and third parties.
13. Each party shall provide to the Panel the list of members of its delegation no later than
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.
14. A request for interpretation by any party should be made to the Panel as early as possible,
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite each complainant to make an opening statement to pr esent its
case first, in the order in which the disputes were filed. Subsequently, the Panel shall invite
India to present its point of view. Before each party takes the floor, it shall provide the Panel
and other participants at the meeting with a provisi onal written version of its statement. If
interpretation is needed, each party shall provide additional copies for the interpreters before
taking the floor.
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each
complainant is invited to limit the duration of its opening statement to not more than 60
minutes and India is invited to limit the duration of its opening statement to not more than
90 minutes. If either party considers that it requires more time for its opening sta tement, it
should inform the Panel and the other party at least 10 days before the meeting, together
with an estimate of the expected duration of its statement. The Panel will accord equal time
to the other parties.
c. After the conclusion of the opening s tatements, the Panel shall give each party the
opportunity to make comments or ask the other parties questions. Each complainant should
endeavour to make comments or ask the other parties questions concerning only matters
raised in its own dispute. India s hould endeavour to make comments on a complainant's
statement or ask a complainant questions concerning only matters raised in the dispute
brought by that complainant.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

d. The Panel may subsequently pose questions to the parties.
e. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the complainants presenting their statements first, in
the order in which the disputes were filed. Before each party takes the floor, it shall provide
the Panel and other participants at the meeting with a provisional written version of its closing
statement, if available.
f. Following the meeting:
i. Each party shall submit a final written version of its opening statement no later than
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same
time, each party should also submit a final written version of any prepared closing
statement that it delivered at the meeting.
ii. Each party shall send in writing, within the timeframe established by the Panel before
the end of the meeting, any questions to the other parties to which it wishes to receive
a response in writing.
iii. The Panel shall send in writing, within the timeframe established by the Panel before
the end of the meeting, a ny questions to the parties to which it wishes to receive a
response in writing.
iv. Each party shall respond in writing to the questions from the Panel, and to any
questions posed by the other party, within the time -frame established by the Panel
before the end of the meeting.
16. The second substantive meeting of the Panel with the parties shall be conducted in the same
manner as the first substantive meeting with the Panel, except that India shall be given the
opportunity to present its opening statement first. If India chooses not to avail itself of that right, it
shall inform the Panel and the other parties no later than 5.00 pm (Geneva time) three working days
before the meeting. In that case, the complainants shall present their opening statements first, in
the order in which the disputes were filed, followed by India. The party or parties that presented the
opening statement(s) first shall present the closing statement(s) first.
Third-party session
17. Each third party may present its views orally during a session of the first substantive meeting
with the parties set aside for that purpose.
18. Each third party shall indicate to the Panel whether it intends to make an oral statement during
the third-party session, along with the list of members of its dele gation, in advance of this session
and no later than 5.00 p.m. (Geneva time) three working days before the third-party session of the
meeting with the Panel.
19. (1) Each third party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each third party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the conf identiality of the proceedings and the
submissions of the parties and third parties.
20. A request for interpretation by any third party should be made to the Panel as early as
possible, preferably upon receiving the Working Procedures and timetable for th e proceedings, to
allow sufficient time to ensure availability of interpreters.
21. The third-party session shall be conducted as follows:
a. All parties and third parties may be present during the entirety of this session.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

b. The Panel shall first hear th e oral statements of the third parties, who shall speak in
alphabetical order. Each third party making an oral statement at the third -party session
shall provide the Panel and other participants with a provisional written version of its
statement before it takes the floor. If interpretation of a third party's oral statement is
needed, that third party shall provide additional copies for the interpreters before taking
the floor.
c. Each third party should limit the duration of its statement to 15 minutes, an d avoid
repetition of the arguments already in its submission. If a third party considers that it
requires more time for its oral statement, it should inform the Panel and the parties at
least 10 days before the meeting, together with an estimate of the ex pected duration of
its statement. The Panel will accord equal time to all third parties for their statements.
d. After the third parties have made their statements, the parties shall be given the
opportunity to pose questions to any third party for clarifi cation on any matter raised in
that third party's submission or statement.
e. The Panel may subsequently pose questions to any third party.
f. Following the third-party session:
i. Each third party shall submit the final written version of its oral stateme nt, no later
than 5.00 p.m. (Geneva time) on the first working day following the meeting.
ii. Each party may send in writing, within the timeframe to be established by the Panel
before the end of the meeting, any questions to one or more third parties to w hich it
wishes to receive a response in writing.
iii. The Panel may send in writing, within the timeframe to be established by the Panel
before the end of the meeting, any questions to one or more third parties to which it
wishes to receive a response in writing.
iv. Each third party choosing to do so shall respond in writing to written questions from
the Panel or a party, within a timeframe established by the Panel before the end of the
meeting.
Descriptive part and executive summaries

22. The description of the arguments of the parties and third parties in the descriptive part of the
Panel Reports shall consist of executive summaries provided by the parties and third parties, which
shall be annexed as addenda to the Reports. These executive summaries shall not in any way serve
as a substitute for the submissions of the parties and third parties in the Panel's examination of the
case.
23. Each party shall submit an integrated executive summary summarizing the facts and
arguments as presented to the Panel in its written submissions and oral statements, and may also
include a summary of its responses to the questions following each meeting with the Panel. The
timing of the submission of this integrated executive summary shall be indicated in the t imetable
adopted by the Panel.
24. The integrated executive summary shall be limited to 30 pages for the complainants and 40
pages for India.
25. The Panel may request the parties and third parties to provide executive summaries of facts
and arguments presented in any other submissions to the Panel for which a deadline may not be
specified in the timetable.
26. Each third party shall submit an integrated executive summary of its arguments as presented
in its written submission and statement in accordance with the timetable adopted by the Panel. This
integrated executive summary may also include a summary of responses to questions. The executive
summary to be provided by each third party shall not exceed six pages. If a third-party submission
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

and/or oral statement does not exceed six pages in total, this shall serve as the executive summary
of that third party's arguments unless that third party submits a separate executive summary or
otherwise indicates that it does not wish for the submission/statement to se rve as its executive
summary.
Interim review

27. Following issuance of the Interim Reports, each party may submit a written request to review
precise aspects of the Interim Reports and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
28. Each party may submit written comments on the other parties' written requests for review.
Such written comments shall be limited to the other parties' written request for review and shall be
submitted in accordance with the timetable adopted by the Panel.
Interim and Final Reports
29. The Interim Reports, as well as the Final Reports before their official circulation, shall be kept
strictly confidential and shall not be disclosed.
Service of documents

30. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceedings:
a. Each party and third party shall submit all documents to the Panel by submitting them
with the DS Registry (office No. 2047).
b. Each party and third party shall submit 1 paper copy of its submissions and 1 paper copy
of its exhibits to the Panel by 5.00 p.m. ( Geneva time) on the due dates established by
the Panel. The DS Registrar shall stamp the documents with the date and time of
submission. If an exhibit is in a format that is impractical to submit as a paper copy, then
the party may submit such exhibit in e lectronic format (email or on a CD -ROM, DVD or
USB key). In this case, the cover page of the exhibit should indicate that the exhibit is
only available in electronic format.
c. Each party and third party shall also send an email to the DS Registry, at the same time
that it submits the paper copies, attaching an electronic copy of all documents that it
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails
to the Panel shall be addressed to DSRegistry@wto.org, and copied to o ther WTO
Secretariat staff whose email addresses have been provided to the parties during the
proceedings. The electronic version submitted to the DS Registry shall constitute the
official version for the purposes of submission deadlines and the record of the disputes. If
it is not possible to attach all the exhibits to one email, the submitting party or third party
shall provide the DS Registry with four copies of the exhibits on USB keys, CD -ROMs or
DVDs.
d. In addition, each party and third party is invited to submit all documents through the WTO
e-filing system within 24 hours following the deadline for the submission of the paper
versions. If the parties or third parties have any questions or technical difficulties relating
to the e-filing system, they are invited to contact the DS Registry at DSRegistry@wto.org.
e. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve any submissions in advance of the first substantive
meeting wi th the Panel directly on the third parties. Each third party shall serve any
document submitted to the Panel directly on the parties and on all other third parties. A
party or third party may serve its documents on another party or third party by email or
other electronic format acceptable to the recipient without having to serve a paper copy,
unless the recipient party or third party has requested a paper copy at least five working
days before their filing. Each party and third party shall confirm, in writ ing, that copies
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

have been served on the parties and third parties, as appropriate, at the time it provides
each document to the Panel.
f. Each party and third party shall submit its documents with the DS Registry and serve
copies on the other parties (and third parties if appropriate) by 5.00 p.m. (Geneva time)
on the due dates established by the Panel.
g. As a general rule, all communications from the Panel to the parties and third parties will
be via email. In addition to transmitting them to the partie s by email, the Panel shall
provide the parties with paper copies of the Interim Reports and the Final Reports.
Correction of clerical errors in submissions

31. The Panel may grant leave to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request should
identify the nature of the errors to be corrected, and should be made promptly following the filing
of the submission in question.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX A-2
ADDITIONAL WORKING PROCEDURES FOR THE PANEL'S FIRST SUBSTANTIVE MEETING TO BE
HELD BY REMOTE MEANS
Adopted on 2 November 2020

General
1. These Additional Working Procedures describe the manner in which the Panel's first substantive
meeting with the parties and third parties will be held by remote means.
2. The format of the first substantive meeting is without prejudice to how the Panel decides to
conduct its second substantive meeting with the parties.
Definitions
3. For the purposes of these Additional Working Procedures:
"Participant" means any registered person attending the meeting with the Panel by remote
means.
"Platform" means the software or system through which participants attend the meeting with
the Panel.
"Host" means the designated person within the WTO Secretariat responsible for the
management of the platform.
Equipment and technical requirements
4. Each party and th ird party shall ensure that all participants of its delegation join the meeting
using the designated platform, and meet the minimum equipment and technical requirements
set out by the platform provider for the effective conduct of the meeting.
Technical support
5. (1) Each party and third party shall be responsible for providing technical support to the
participants of its delegation.
(2) The host will assist participants in accessing and using the platform in preparation of, and
during, the meeting with the Panel.
Pre-meeting
Registration
6. Each party and third party shall provide to the Panel the list of the members of its delegation,
on a dedicated form to be provided by the WTO Secretariat, no later than 5:00 p.m. (Geneva
time) 10 working days before the meeting with the Panel. When submitting their lists, third
parties shall also indicate whether they intend to make an oral statement at the meeting.
Advance testing
7. Before the meeting with the Panel, the WTO Secretariat will hold two testing sessions: (i) an
individual test with the participants of each party and third party; and (ii) a joint test with all
participants in the meeting and the panelists. Such testing sessions will seek to reflect, as far as
possible, the conditions of the meeting.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

Confidentiality and security
8. The meeting shall be confidential.
9. The participants shall connect to the virtual meeting room through a secure internet connection
and shall avoid the use of an open or public internet connection.
10. The parties and third parties are strict ly prohibited from recording, via audio, video or
screenshot, the meeting or any part thereof.
11. All participants shall follow the confidentiality and security rules contained in these Additional
Working Procedures as well as any additional security guidance that may be provided by the
host.
Conduct of the meeting
Access to the virtual meeting room
12. (1) The host will invite participants via email to join the virtual meeting room on the platform.
(2) For security reasons, access to the virtual meeting room will be password -protected and
limited to registered participants.
(3) Each party and third party shall ensure that only registered participants from its delegation
join the virtual meeting room and that the meeting link or password is not forwarded to, or
shared with, others.
Advance log-on
13. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled start
time of each session of the meeting with the Panel.
(2) All participants shall log on to the platform at least 30 minutes in advance of the scheduled
start time of each session of the meeting with the Panel.
Document sharing
14. (1) Each party and third party shall provide the Panel and other participants with a provisional
written version of its opening statement, and its closing statement, if available, 20 minutes
before delivery at the meeting.
(2) Any participant wi shing to share a document with the Panel and other participants during
the meeting shall do so before first referring to such document at the meeting.
Technical problems
15. (1) Each party and third party shall designate a contact person who can liaise with th e host
during the course of the meeting to report any technical problems that arise with respect to the
platform. The host can be contacted via the platform, by sending an email to
leslie.stephenson@wto.org, or by calling +41 (0)22 739 6148.
(2) The Panel will pause the meeting until the technical problem is resolved, unless the affected
party or third party agrees that the meeting can proceed without the problem being resolved.
Relation with the Working Procedures of the Panel
16. These Additional Working Procedures complement the Working Procedures of the Panel, adopted
on 5 December 2019, and prevail over the latter to the extent of any conflict.
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ANNEX A-3
ADDITIONAL WORKING PROCEDURES FOR THE PANEL'S SECOND SUBSTANTIVE MEETING TO BE
HELD BY REMOTE MEANS
Adopted on 23 February 2021

General
1. These Additional Working Procedures describe the manner in which the Panel's second
substantive meeting with the parties will be held by remote means.
Definitions
2. For the purposes of these Additional Working Procedures:
"Participant" means any registered person attending the meeting with the Panel by remote
means.
"Platform" means the software or system through which participants attend the meeting with
the Panel.
"Host" means the designate d person within the WTO Secretariat responsible for the
management of the platform.
Equipment and technical requirements
3. Each party shall ensure that all participants of its delegation join the meeting using the
designated platform, and meet the minimum eq uipment and technical requirements set out by
the platform provider for the effective conduct of the meeting.
Technical support
4. (1) Each party shall be responsible for providing technical support to the participants of its
delegation.
(2) The host will as sist participants in accessing and using the platform in preparation of, and
during, the meeting with the Panel.
Pre-meeting
Registration
5. Each party shall provide to the Panel the list of the members of its delegation, on a dedicated
form to be provided by the WTO Secretariat, no later than 5:00 p.m. (Geneva time) 10 working
days before the meeting with the Panel.
Advance testing
6. Before the meeting with the Panel, the WTO Secretariat will hold two testing sessions: (i) an
individual test with the participants of each party; and (ii) a joint test with all participants in the
meeting and the panelists. Such testing sessions will seek to detect and resolve any technical
problems, as well as to reflect, as far as possible, the conditions of the meeting.
Confidentiality and security
7. The meeting shall be confidential.
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8. The participants shall connect to the virtual meeting room through a secure internet connection
and shall avoid the use of an open or public internet connection.
9. The parties are strictly prohibited from recording, via audio, video or screenshot, the meeting or
any part thereof.
10. All participants shall follow the confidentiality and security rules contained in these Additional
Working Procedures as well as any additional security guidance that may be provided by the
host.
Conduct of the meeting
Access to the virtual meeting room
11. (1) The host will invite participants via email to join the virtual meeting room on the platform.
(2) For security reasons, access to the virtual meeting room will be password -protected and
limited to registered participants.
(3) Each party shall ensure that only registered participants from its delegation join the virtual
meeting room and that the meeting link or password is not forwarded to, or shared with, others.
Advance log-on
12. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled start
time of each session of the meeting with the Panel.
(2) All participants shall log on to the platform at least 30 minutes in advance of the scheduled
start time of each session of the meeting with the Panel.
Document sharing
13. (1) Each party shall provide the Panel and other participants, via email, with a provisional written
version of its opening statement, and its closing statement, if available, at least 20 minutes
before delivery at the meeting.
(2) Any participant wishing to share a document with the Panel and other participants during
the meeting shall do so, via email, before first referring to such document at the meeting.
Technical problems
14. (1) Each party shall designate a contact person who can liaise with the host during the cou rse
of the meeting to report any technical problems that arise with respect to the platform. The host
can be contacted via the platform, by sending an email to leslie.stephenson@wto.org, or by
calling +41 (0)22 739 6148.
(2) The Panel will pause the meeting until the technical problem is resolved, unless the affected
party agrees that the meeting can proceed without the problem being resolved.
Relation with the Working Procedures of the Panel
15. These Additional Working Procedures complement the Working Procedures of the Panel, adopted
on 5 December 2019, and prevail over the latter to the extent of any conflict.

WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Brazil 18
Annex B-2 Integrated executive summary of the arguments of Australia 37
Annex B-3 Integrated executive summary of the arguments of Guatemala 59
Annex B-4 Integrated executive summary of the arguments of India 83
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ANNEX B-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL
I. INTRODUCTION
1. In this dispute, Brazil challenges India's domestic support for sugarcane and export subsidies
for sugar as inconsistent with Parts IV and V of the Agreement on Agriculture. Brazil does not
challenge India's right to support its sugarcane farmers and sugar industry, where such support is
provided consistently with its WTO obligations. The measures at issue in this dispute, however, are
not only WTO -inconsistent, they also harm Brazil's interests as a major producer and exporter of
sugar.
2. India's Central Government annually fixes a so-called "Fair and Remunerative Price" ("FRP"),
prescribing the minimum purchase price that sugar mills must pay to farmers for any sugarcane
delivered to the mill. Since its introduction in 2009, the FRP level has more than doubled. On top of
the FRP, some of India's State Governments prescribe, through so -called State Advised Prices
("SAPs"), minimum purchase prices for sugarcane that are even higher than the already -high FRP.
Additionally, India's Central and State Governmen ts provide direct payments, soft loans and other
support to sugarcane farmers and sugar mills.
3. These three sets of measures have resulted in artificially high sugarcane prices in India, a
70 per cent increase in sugar production, as well as an all -time high sugar stock of 17.58 million
tons in 2019. To evacuate its ever -increasing domestic sugar stocks, India provides subsidies to
increase sugar exports, thereby plaguing the world sugar market with its excess production. With
these three sets of measures, India had become the world's second largest producer and third largest
exporter of sugar by the end of the 2018/19 sugar season.
4. As summarized in Section 0, below, and as set out in its submissions, Brazil has established
that India's provision of domestic support for sugarcane is inconsistent with the Agreement on
Agriculture. Under Article 7.2(b) of the Agreement on Agriculture, India's domestic support must not
exceed the applicable de minimis level of 10 per cent of the value of production. Yet, India's domestic
support for sugarcane far exceeds that de minimis level.
5. Moreover, and as summarized in Section 0, below, and as set out in its submissions, Brazil
has established that India's export subsidies for sugar are inconsistent with Articles 3.3 and 8 of the
Agreement on Agriculture. Under those provisions, India is not entitled to provide the type of export
subsidies for sugar at issue in these proceedings.
6. For the most part, India did not dispute, or even agreed with, Brazil's argument and
evidence. There are no more than a few instances, in which India has even challenged Brazil's
arguments and evidence. In each case, Brazil has demonstrated that India's arguments have no
basis in law or in fact. This includes an unfounded Request for a Preliminary Ruling by the Panel
(Section 0). As a result, the number of issues that the Panel is called upon to resolve in this dispute
is narrow. Based on the argument and evidence before it, the Panel must rule in Brazil's favor.
II. INDIA PROVIDES DOMESTIC SUPPORT FOR SUGARCANE IN A MANNER
INCONSISTENT WITH ITS OBLIGATIONS UNDER THE AGREEMENT ON AGRICULTURE
7. Brazil claims that India's domestic support for sugarcane though the FRP, SAPs and other
domestic support measures is inconsistent with its domestic support obligations under Part IV of the
Agreement on Agriculture. Specifically, Brazil has demonstrated that India's domestic support for
sugarcane far exceeds the permissible 10 per cent de minimis level that applies to India. As a result,
India's domestic support for sugarcane is inconsistent with Article 7.2(b) of the Agreement on
Agriculture.
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A. Factual Background on India's Domestic Support to Sugarcane Farmers
8. India's Central and State Governments each enjoy legislative and executive power to enact
laws and regulations over matters relating to the sugar industry. As summarized below, in the
exercise of that authority, they maintain three sets of measures that pr ovide domestic support to
sugarcane. India has not disputed the factual background on its domestic support measures that are
at issue in this dispute, as summarized below.
1. India's Central Government fixes a "Fair and Remunerative Price" for
sugarcane
9. Section 3 of the Essential Commodities Act 1955 empowers India's Central Government to
control the production, supply and distribution of essential commodities, including sugar cane. In
exercise of that power, it has adopted the Sugarcane (Control) Order 1966.
10. Section 3(1) of the Sugarcane (Control) Order provides that the Central Government may
fix a fair and remunerative price of sugarcane to be paid by producers of sugar or their agents for
the sugarcane they purchase. Section 3(2) of the Order requires that no person sell or agree to sell
sugarcane to a producer of sugar or his agent, and that no producer or agent shall purchase or agree
to purchase sugarcane, at a price lower than the FRP. It further requires that the sugar producer
(i.e., a sugar mill) or its agent pay sugarcane farmers within 14 days from the date of delivery of
the sugarcane. Failure to comply with the FRP may result in certain penalties, provided for under
the Essential Commodities Act 1955.
11. India's Central Government has fixed the FRP since 2009. Since then, its level has more
than doubled. Each year, India's Commission for Agricultural Costs and Prices ("CACP"), an entity
affiliated with India's Ministry of Agriculture and Farmers Welfare, recommends a basi c FRP rate
linked to a basic sugarcane recovery rate, as well as a premium rate for sugarcane whose recovery
rate, or quality, exceeds the basic recovery rate. The CACP's recommendation is subject to
consideration and the approval by India's Central Govern ment Cabinet. Following the Cabinet's
approval, the Department of Food & Public Distribution ("DFPD") of the Ministry of Consumer Affairs,
Food & Public Distribution announces the FRP through both an official letter to the "Chief Secretaries
of All Sugar Producing States" and the website of the India's Government Press Information Bureau.
12. Figure 1, below, displays the basic FRP rates announced by the DFPD for each sugar season
since the 2009/10 sugar season.
Figure 1 – The FRP at the Basic Recovery Rate for the Sugar Seasons 2009/10 to 2019/20
(unit: INR per 100 kg)
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13. Using the FRP for the 2019/2020 sugar season, Figure 2, below, illustrates the operation of
the FRP premium rates for sugarcane whose quality exceeds the basic recovery rate. To that end, it
shows the minimum FRP that a sugarcane farmer receives for sugarcane at different recovery rates.
For the 2019/2020 sugar season, the FRP was fixed at INR 275 per 100 kilograms for a basic recovery
rate of 10 per cent, subject to a premium of INR 2.75 per 100 kilograms for each 0.1 per cent
increase in the recovery rate over and above 10 per cent. As shown in Figure 2, sugarcane with a
recovery rate below 10 per cent would not be penalized, and would receive th e FRP on the basis of
an assumed 10 per cent recovery rate.
Figure 2 – The FRP at Different Recovery Rates for the Sugar Season 2019/20 (unit: INR
per 100 kg)

2. Certain State Governments fix "State Administered Prices" for sugarcane
14. The Sugarcane (Control) Order 1966 also permits India's State Governments to fix minimum
sugarcane purchase prices, provided that such prices are higher than the FRP. These State -level
minimum sugarcane price schemes are called "State Adminis tered Prices". Such SAPs are fixed by
Bihar, Haryana, Punjab, Tamil Nadu, Uttar Pradesh and Uttarakhand.
15. The State Governments of Bihar, Haryana, Punjab, Uttar Pradesh, and Uttarkhand set SAP
rates for different varieties of sugarcane. These SAPs take the form of specific prices set for, typically,
three categories of sugarcane comprising specific varieties of sugarcane.
16. The State Government of Tamil Nadu applied SAPs for the sugar seasons 2014/15, 2015/16
and 2016/17, using a basic rate linked to a basic sugarcane recovery rate of 9.5 per cent, and a
premium rate for sugarcane whose quality exceeds that basic recovery rate. Since the 2017/18
sugar season, Tamil Nadu operates a mandatory revenue-sharing regime.
3. India's Central and State Governm ents provide other domestic support
to further support sugarcane farmers
17. India's Central and State Governments maintain additional domestic support for sugarcane.
Brazil has organized these additional programs into three categories.
18. The first category comprises programs that appear to be designed, and operate, to enable
sugar mills to pay farmers sugarcane arrears, addressing sugar mills' challenge to pay sugarcane
farmers the required FRP or SAPs. These programs include:
• the Central Government's S cheme for Assistance to Sugar Mills for the 2017/18 and
2018/19 sugar seasons;
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• the Central Government's Scheme for Extending Production Subsidy to Sugar Mills for
the 2015/16 sugar season;
• the Central Government's Scheme for Creation and Maintenance of Bu ffer Stock
launched in 2018 and 2019;
• the Central Government's Scheme for Defraying Expenditure Towards Internal Transport
for the 2018/19 sugar season (which has as its purpose the reduction of sugarcane
arrears);
• the Central Government's Scheme for Pro viding Assistance to Sugar Mills for Expenses
on Marketing Costs for the 2019/20 sugar season (which has as its purpose the reduction
of sugarcane arrears);
• the Central Government's Scheme for Incentive Payments for Marketing and Promotion
Services for Ra w Sugar 2014 (which has as its purpose the reduction of sugarcane
arrears);
• the Central Government's Scheme for Extending Soft Loan to Sugar Mills for the sugar
seasons 2014/15 and 2018/19;
• direct payments for sugar mills provided by the State Government of Bihar to pay
sugarcane farmers
• a one-time settlement of loans to all coo perative sugar mills by the State Government
of Haryana; and
• soft loans subsidized by certain State Governments.
The details of these programs are set out in Appendix -A of Brazil's First Written Submission
("Appendix-A programs").
19. The second category comprises programs that offer additional support to sugarcane farmers
on top of the support provided by the FRP and SAPs, so that farmers receive benefits beyond the
FRP or SAPs. These programs include:
• the foregoing purchase tax of the State Government of Andhra Pradesh;
• the provision of a transitional production incentive to sugarcane farmers by the State
Government of Tamil Nadu; and
• the provision of direct payments for sugar mills to pay sugarcane farmers an incentive
price by the State Government of Karnataka.
The details of these programs are set out in Appendix -B of Brazil's First Written Submission
("Appendix-B programs").
B. India Provides Domestic Support for Sugarcane in Excess of the Applicable 10
Per Cent De Minimis Level
1. Legal framework applicable to Brazil's domestic support claims
20. Under Part IV of the Agreement on Agriculture, each Member's principal domestic support
obligations depend on whether its Schedule includes, in Section I of Part IV, a Total Aggregate
Measurement of Support ("AMS") commitment. Brazil has established, and I ndia does not dispute,
that India's Schedule does not contain a Total AMS commitment. In these circumstances,
Article 7.2(b) of the Agreement on Agriculture applies, and requires India not to provide domestic
support to agricultural producers in excess of the relevant de minimis level set out in Article 6.4 of
the Agreement on Agriculture.
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21. Article 6.4 specifies that, with respect to the provision of product -specific domestic support
(such as domestic support for sugarcane), the applicable de minimis level for a developing country
Member (such as India) is 10 per cent of the value of production of the basic agricultural product
during the relevant year. Consequently, India cannot provide domestic support to its sugarcane
producers at levels that are in excess of 10 per cent of the value of production of sugarcane in any
given year.1 India agrees.
22. Pursuant to Article 1(a)(ii) of the Agreement on Agriculture, the level of a Member's domestic
support "during any year of the implementation period and ther eafter" is assessed through the
calculation of its Current AMS. That Current AMS must be "calculated in accordance with the
provisions of Annex 3 of this Agreement and taking into account the constituent data and
methodology used in the tables of supportin g material incorporated by reference in Part IV of the
Member's Schedule".
23. Accordingly, in this dispute, Brazil has calculated India's provision of domestic support for
sugarcane based on the relevant provisions in Annex 3 of the Agreement on Agricult ure and has
taken "into account" constituent data and methodology used in the tables of supporting material of
India's Schedule, where applicable.
2. India's far exceeds the de minimis level solely through the domestic
support provided by the market price support under the FRP and SAPs
24. Paragraph 1 of Annex 3 of the Agreement on Agriculture, for the purpose of applying specific
AMS calculation rules, categorizes domestic support measures that are not exempted from reduction
commitments into three categories: (i) market price support; (ii) non-exempt direct payments; and
(iii) other non-exempt policies. Following this initial categorization of non -exempt product-specific
domestic support measures under paragraph 1, the remainder of Annex 3 sets out calculation rules
applicable to each of the categories of domestic support, including (i) in paragraph 8 for market
price support; (ii) in paragraphs 10 -12 for non-exempt direct payments; and (iii) in paragraph 13
for other non-exempt policies.
a. India provides market price support for sugarcane through the FRP and
SAPs
i. Brazil has established that India's FRP and SAPs for sugarcane
constitute market price support
25. Brazil has established that the FRP and SAPs constitute "market price support", with in the
meaning of paragraphs 1 and 8 of Annex 3. Paragraph 8 of Annex 3 provides that "market price
support shall be calculated using the gap between a fixed external reference price" (or "FERP") "and
the applied administered price" (or "AAP") "multiplied by the quantity of eligible production"
(or "QEP").
26. Thus, "market price support" exists where there is a "gap" between an AAP and the FERP,
and there are rules for determining the QEP. Since the FERP is "fixed" by historical data pursuant to
paragraph 9 of Annex 3, Members provide "market price support" when they set an AAP. The term
"administered price" under paragraph 8 refers to a price that is determined not by market forces but
by administrative action. As the panel in China – Agricultural Producers noted, an AAP is "the price
set by the government at which specified entities will purchase certain basic agricultural products".2
Because the AAP is fixed by the government rather than discovered by market forces, the
government may need to adopt additional measures to balance supply and demand so as to maintain

1 Alternatively, if the Panel were to consider the absence of a Total AMS commitment level in Section I of
Part IV of India's Schedule to be a zero entry, Brazil has established that Articles 3.2 and 6.3 of the Agreement
of Agriculture require India's Current Total AMS not to exceed that zero level. Pursuant to Article 6.4 of the
Agreement on Agriculture, a Member's Current Total AMS does not include any product-specific or non-product-
specific AMS values that are below or equal to the applicable de minimis level of support. Therefore, Articles 3.2
and 6.3 of the Agreement of Agriculture would lead to the same domestic support obligation for India as under
Article 7.2(b) of the Agreement on Agriculture, i.e., India's provision of domestic support for sugarcane must not
exceed the applicable 10 per cent de minimis level.
2 Panel Report, China – Agricultural Producers, para. 7.177.
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the AAP, and to prevent market prices from falling below the AAP, as envisaged by the second
sentence of paragraph 8.
27. The FRP and SAPs are market price support within the meaning of paragra phs 1 and 8 of
Annex 3 of the Agreement on Agriculture, because they are minimum purchase prices set by the
Central and State Governments of India.
ii. India erred in arguing that market price support must involve government
purchases
28. India argued that, because its Governments do not themselves purchase sugarcane and pay
sugarcane producers the FRP or SAPs, the support delivered through the FRP and SAPs is neither
market price support, nor any other form of domestic support subject to India's commitments under
the Agreement on Agriculture. In support of that argument, India asserted that paragraph 2 of
Annex 3, read together with paragraph 1 of Annex 3, delineates the scope of a Member's domestic
support commitments by: (i) limiting the provider of domestic support to governments or their
agents; and (ii) confining the form of domestic support only to "subsidies", which, according to India,
are limited to budgetary outlays and revenue foregone. As Brazil has established, India erred.
29. First, Brazil has explained that the scope of measures that are subject to a Member's
domestic support commitments under the Agreement on Agriculture is governed by Article 6 of the
Agreement on Agriculture. Article 6.1 of the Agreement on Agriculture provides that "all [] domestic
support measures in favor of agricultural producers" are subject to the reduction commitments,
unless the Member providing the support demonstrates compliance with the criteria for certain
exemptions set out in in Annex 2 and Articles 6.2 and 6.5 of the Agreement on Agriculture.
Article 1(h) similarly explained that "all domestic support provided in favour of agricultural
producers" must be included in the AMS calculations, unless specifically exempt. Similarly, Article
7.2(a) refers to "any domestic support measure in favour of agricultural producers" when framing
the obligation contained therein.
30. India did not dispute that the FRP and SAPs deliver support in favor of sugarcane farmers.
Indeed, the FRP and SAPs prevent sugarcane producers' revenue per unit of sugarcane from falling
below a minimum floor price set by the FRP and SAPs. Nor did India argue – let alone demonstrate
– that the FRP and SAPs are exempt from its domestic support commitments under the exemptions
in Annex 2 and Articles 6.2 and 6.5 of the Agreement on Agriculture.
31. Accordingly, the FRP and SAPs are domestic support measures in favor of sugarcane
producers that are subject to India's domestic support commitments.
32. Second, India's argument that paragraph 2 of Annex 3 limits the scope of "market price
support" to measures that come in the form of a "subsidy" is bereft of textual support. As Brazil has
established, by its own terms, paragraph 2 applies only if there is a "subsid[y] under paragraph 1".
Where applicable, it provides that calculation of such "subsidies" "shall include both budgetary
outlays and revenue foregone by governments or their agents". Neither paragraph 1 nor paragraph
2 of Annex 3 characterize "market price support" as a "subsidy". Instead, "market price support" is
a form of "domestic support", which is the term used to describe the subject matter and scope of
the disciplines in Part IV of the Agreement on Agriculture. Had the drafters intended to subject
"subsidies" to disciplines, they would have framed the disciplines in Part IV not in terms of "domestic
support" but in terms of "domestic subsidies". They did not.
33. Yet, even assuming, arguendo, that paragraph 2 of Annex 3 were to apply to all three forms
of "support" under paragraph 1, including "market price support", it would still not limit the scope
of "market price support" to schemes involving government purchases, and therewith budgetary
outlays or revenue foregone, as India argues. Brazil has shown that the term "include" in paragraph
2 indicates that what follows – i.e., "both budgetary outlays and revenue foregone by governments
or their agents" – is a non-exhaustive list that would not preclude the existence of "subsidies" in a
form other than budgetary outlays or revenue foregone. Moreover, Brazil has shown that, contrary
to India's argument, the term "both", which immediately follows the term "include" in paragraph 2,
does not, and cannot, transform a non -exhaustive list into an exhaustive list. Thus, India erred in
arguing that paragraph 2 limits domestic support measures, including market price support, to those
that involve either budgetary outlays or revenue foregone.
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34. Third, the ordinary meaning and context of the term "market price support", as well as the
object and purpose of the Agreement on Agriculture, are at odds with India's argument that "market
price support" must involve government purchases.
35. The term "market price support" appears in paragraphs 1 and 8 of Annex 3. Nothing in the
legal text of those provisions limits "market price support" to schemes involving government
purchases. Indeed, the second sentence of paragraph 8, which concerns the treatment of budgetary
payments made to maintain the price gap, such as buying -in or storage costs, does not limit such
buying-in or storage costs to costs incurred by governments.
36. Turning to relevant context, Annex 4 of the Agreement on Agriculture clarifies that the term
"market price support" is "defined in Annex 3",3 and has the same meaning under Annex 4 as it has
under Annex 3. Annex 4 then confirms that "market price support" is a form of domestic support
that covers a broad range of measures that do not necessarily involve government purchases.
Further relevant context in Annex 2 clarifies that "tra nsfers from consumers" – which occur where
government measures set prices at a price higher than they otherwise would be – may constitute
domestic support. Similarly, Article 6.1 confirms that "all [] domestic support measures in favour of
agricultural pro ducers" are subject to the reduction commitments, without requiring that they
involve government purchases, or budgetary outlays or revenue foregone. Article 6.2 also confirms
the broad coverage of domestic support, recognizing that "assistance" may be "direct or indirect" in
encouraging agricultural and rural development. Thus, the relevant context contradicts India's
argument that "market price support" must be limited to schemes involving government purchases.
37. As additional context, Brazil pointed to India's own supporting tables, as incorporated into
its Schedule, explaining that India's supporting tables are at odds with India's interpretation of the
term "market price support", and further confirm Brazil's in terpretation. Indeed, in its supporting
tables, India identified as "market price support" a program that is similar to the FRP for sugarcane.
That program similarly did not involve government purchases of sugarcane, and instead required
sugar mills to pay an AAP. India has been unable to explain why its position in this dispute deviates
from the correct understanding of the term "market price support" that it applied when putting
together its supporting tables.
38. Finally, the object and purpose of the A greement on Agriculture is consistent with Brazil's
interpretation. The third recital of its Preamble refers to "substantial progressive reductions in
agricultural support and protection [] resulting in correcting and preventing restrictions and
distortions in world agricultural markets". Direct price interventions, such as under the FRP and
SAPs, raise the price received by producers, which negotiators recognized is one of the most
distortive forms of domestic support. Excluding from reduction commitments forms of market price
support, such as the FRP and SAPs, that do not involve government purchases would defeat the
object and purpose of the Agreement on Agriculture. It would also create, without any textual basis,
a wide and easily abused loophole in the disciplines.
iii. Conclusion
39. In short, Brazil has established that the FRP and SAPs constitute "market price support".
Brazil has also refuted India's erroneous arguments that sought to exclude from the domestic
support disciplines in the Agreement on Agriculture the domestic support provided to India's
sugarcane producers by the FRP and SAPs.
b. India's market price support for sugarcane under the FRP and SAPs results in
domestic support that far exceeds the applicable de minimis level
40. Paragraph 8 of Annex 3 sets out the domestic support quantification rules for market price
support, which India provides through the FRP and SAPs. Paragraph 8 requires that the support be
calculated on the basis of the following "price gap" formula:
MPS = (AAP – FERP)*QEP

3 Agreement on Agriculture, Annex 4, paragraph 1.
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41. Brazil applied the "price gap" formula for each State in India growing sugarcane. India did
not dispute that approach.
42. Starting with the AAP, Brazil recalls that certain States in India apply the FRP, while others
apply a higher SAP. For States that apply the FRP, the AAP applicable in a given year is determined
through that year's FRP at the basic recovery rate and any premium for higher recovery rates. That
is, the applicable AAP may differ depending on the average recovery rate f or sugarcane. Brazil has
therefore estimated the AAP for each State using its average recovery rate. For the States that apply
SAPs, Brazil has adopted an AAP at the rate for the middle category of sugarcane varieties. India
did not dispute Brazil's approach.
43. The FERP derives from India's supporting tables in G/AG/AGST/IND. Since sugarcane
recovery rates in India today are higher than the 8.5 per cent applicable when India reported the
FERP in its supporting tables, Brazil has adjusted the FERP consistent with paragraph 9 of Annex 3.
Specifically, Brazil adjusted the FERP for each State to ensure that the FERP was expressed at the
same sugarcane quality level, or recovery rate, at which the AAP was expressed. Again, India did
not dispute Brazil's approach.
44. The QEP refers to the amount of production of a product that is fit, or able, to benefit from
the price support provided through the AAP. The legal framework for the FRP and SAPs does not put
any limitations on the production of sugarcane that may benefit from the FRP or SAPs. Brazil thus
used as the annual QEP in each State the entirety of the annual sugarcane production in that State.
Once again, India did not dispute Brazil's approach.
45. Using, for each State, the values for the three elements of the "price gap" formula for
"market price support", Brazil calculated the total annual amount of domestic support provided by
India through the FRP and SAPs. Comparing that annual amount to India's official annual data for
the "total value of production " of sugarcane, Brazil calculated that India's provision of domestic
support through the FRP and SAPs amounts to 115 per cent, 118 per cent, 113 per cent, 108 per
cent and 105 per cent of the value of production in the sugar seasons 2014/15, 2015/16, 2016/17,
2017/18 and 2018/19, respectively.
46. Each of these annual values far exceeds the de minimis level of 10 per cent of the value of
sugarcane production that India is entitled to provide under Article 7.2 of the Agreement on
Agriculture. Thus, based on the FRP and SAPs alone, India's domestic support for sugarcane is
inconsistent Part IV of the Agreement on Agriculture.4
3. India further exceeds the de minimis level by providing other non -
exempt product-specific domestic support to sugarcane producers
47. In addition to market price support, India also provides other domestic support to sugarcane
farmers through various programs introduced by India's Central and State Governments. To recall,
the Appendix-A programs appear to be designed, and operate, to enable sugar mills to pay for
sugarcane arrears, while the Appendix-B programs provide additional support to sugarcane farmers
on top of that provided by the FRP and SAPs.
48. Each of these programs provides support in favor of sugarcane farmers. India has not
claimed, let alone demonstrated, that any of these programs is exempted from reduction
commitments by virtue of Annex 2, or Article 6.2, or Article 6.5. Ac cordingly, these programs
constitute either non-exempt direct payments or other non-exempt policies, within the meaning of
paragraph 1 of Annex 3. Consistent with paragraphs 10, 12 and 13 of Annex 3, the level of support
provided by non-exempt direct payments or other non-exempt policies can be calculated using the
budgetary outlay approach.
49. However, pursuant to the second sentence of paragraph 8 of Annex 3, budgetary payments
made to maintain the gap between the AAP and the FERP, such as buying-in or storage costs, shall

4 Brazil has also shown that India's provision of domestic support through the FRP alone far exceeds 10
percent of the value of India's sugarcane production.
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not be included in the AMS. Since the Appendix -A programs appear to involve payments made to
maintain the gap between the AAP and the FERP, Brazil does not include them in the AMS calculation.
50. By contrast, the Appendix -B programs provide support to sugarcane farmers above and
beyond the market price support provided by the FRP and SAPs. Therefore, they must be included
in the AMS calculation. Adding the budgetary outlays for the Appendix -B programs, the value of
India's domestic support increases marginally, to 115 per cent, 118 per cent, 113 per cent, 109 per
cent and 105 per cent of the value of production in the sugar seasons 2014/15, 2015/16, 2016/17,
2017/18 and 2018/19, respectively. Each of these annual values continues to fa r exceed the de
minimis level of 10 per cent of the value of sugarcane production that India is entitled to provide
under Article 7.2.
51. In light of certain evidentiary difficulties in connection with these programs (not least due to
India's refusal to answer factual questions on them), and prompted by questions from the Panel,
Brazil accepted, however, that, if the Panel finds that India's provision of market price support alone
results in an inconsistency with Article 7.2(b), the Panel may simply categ orize those measures as
non-exempt domestic support, but need not additionally calculate the support provided by the
Appendix-B programs.
52. Brazil has emphasized, however, that not calculating the support provided by the measures
identified and describe d in Appendix -A and Appendix -B does not mean that India's compliance
obligations are limited to any particular component of AMS – e.g., market price support. Instead,
India's compliance obligations with respect to domestic support for sugarcane will concern the overall
AMS level provided through market price support, non -exempt direct payments and other non -
exempt policies for sugarcane.
C. Conclusion
53. In sum, Brazil has established that India's provision of domestic support through the FRP
and SAPs alone amounts to 115 per cent, 118 per cent, 113 per cent, 108 per cent and 105 per cent
of the value of production in the sugar seasons 2014/15, 2015/16, 2016/17, 2017/18 and 2018/19,
respectively, far exceeding the 10 per cent de minimis level. When the other support is added, the
margin by which the total level of support exceeds de minimis levels increases further.
54. Article 7.2(b) of the Agreement on Agriculture requires India not to provide domestic support
in excess of the 10 per cent de minimis level. The Panel should therefore find that India violates its
domestic support commitments under the Agreement on Agriculture.5
III. INDIA PROVIDES EXPORT SUBSIDIES FOR SUGAR CONTRARY TO ARTICLES 3.3 AND
8 OF THE AGREEMENT ON AGRICULTURE
55. Brazil claims that India provides export subsidies for sugar under six programs:
i. the Scheme for Assistance to Sugar Mills for the 2018/19 season;
ii. the Scheme for Creation and Maintenance of Buffer Stock in 2018;
iii. the Scheme for Creation and Maintenance of Buffer Stock in 2019;
iv. the Scheme for Assistance to Sugar Mills for the 2017/18 season;
v. the Scheme for Extending Production Subsidy to Sugar Mills for the 2015/16 season;
and
vi. Scheme for P roviding Assistance to Sugar Mills for Expenses on Marketing Costs
including Handling, Upgrading and Other Processing Costs and Costs of International

5 In the alternative, India acts inconsistently w ith Articles 3.2 and 6.3 because it exceeds its nil
commitment level by providing levels of domestic support for sugarcane in excess of its de minimis level of 10
per cent.
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and Internal Transport and Freight Charges on Export of Sugar ( the "MAEQ Scheme")
for the 2019/20 season.
56. As summarized below, Brazil has established that each of these measures provides export
subsidies for sugar under Article 9.1(a) of the Agreement on Agriculture. By providing Article 9.1(a)
export subsidies for sugar, India acts consistently with Articl es 3.3 and 8 of the Agreement on
Agriculture.
A. Factual Background on India's Export Subsidies for Sugar
57. To recall, India maintains certain subsidies to evacuate surplus sugar production through
exports. To that end, India maintains an export quota r egime, under which each sugar mill is
allocated an annual amount of sugar that it must export. To further incentivize sugar mills to fulfill
their allocated export quota, India conditions their eligibility for various assistance programs upon
fulfilment of their export quotas.
58. For the 2017/18 and 2018/19 sugar seasons, India maintains an export quota regime
involving "Minimum Indicative Export Quotas" ("MIEQs") that require sugar mills to export an
allocated amount of sugar. To encourage sugar mills to export the prescribed quan tities for the
2018/19 sugar season, India conditions the sugar mills' eligibility for the Scheme for Assistance to
Sugar Mills (2018/19 season) and the Scheme for Creation and Maintenance of Buffer Stock (2018)
to fulfilment of their MIEQs. Additionally, sugar mills that have exported against the MIEQ for the
2018/19 season obtain more subsidies under the Scheme for the Creation and Maintenance of Buffer
Stocks (2019). For the 2015/16 sugar season, a similar export subsidy regime features an export
quota regime linked to assistance programs.
59. For the 2019/20 sugar season, India changed the label of its export quota regime from MIEQ
to "Maximum Admissible Export Quantity" ("MAEQ"). However, India continues the same basic
elements that characterize its ex port subsidy regime in the 2018/19 as well as in previous sugar
seasons. In particular, under the MAEQ Scheme, sugar mills that fulfil their allocated export quota
are eligible to a lump sum subsidy of, in the 2019/20 sugar season, INR 10,448 for every ton of
sugar exported. India also increased the MAEQ export quota to a total of 6 million tons of sugar, a
20 per cent over the 2018/19 sugar season.
B. India Provides Article 9.1(a) Export Subsidies Inconsistent with Articles 3.3
and 8 of the Agreement on Agriculture
1. Legal framework applicable to Brazil's export subsidy claims
60. Part V of the Agreement on Agriculture and Section II of Part IV of each Member's Schedule
define a Member's export subsidy commitments for agricultural goods.
61. Article 1(e) of the Agreement on Agriculture defines "export subsidies" as "subsidies
contingent upon export performance, including the export subsidies listed in Article 9". Article 8
provides that "[e]ach Member undertakes not to provide export subsidies otherwise t han in
conformity with this Agreement and with the commitments as specified in that Member's Schedule".
62. "[C]onformity with this Agreement" is assessed for two different types of "export subsidy
commitments", which Members have undertaken pursuant to A rticle 3.3 of the Agreement on
Agriculture and Section II of Part IV of their Schedules. For scheduled agricultural products, i.e.,
products "specified in Section II of Part IV" of Member's Schedule, it must not provide export
subsidies "in excess of the b udgetary outlay and quantity commitment levels specified therein",
except as permitted under Articles 9.2(b) and 9.4. For unscheduled agricultural products, i.e.,
products not specified in Section II of Part IV of a Member's Schedule, it must not provide e xport
subsidies at all, again except as permitted under Articles 9.2(b) and 9.4. Thus, the manner in which
compliance with a Member's export subsidy obligations is assessed depends on whether Section II
of Part IV of its Schedule specifies, for the product at issue, the right to provide export subsidies,
within the limits of the scheduled budgetary outlay and quantity reduction commitments. India does
not disagree with this legal framework.
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63. Section II of Part IV of India's Schedule does not specify any product for which India has
scheduled the right to provide, within limits, export subsidies. Thus, consistent with Articles 3.3 and
8, India can provide export subsidies only to the extent permitted under Article 9.2(b) and Article
9.4. Brazil has explained that Article 9.2(b) is no longer applicable. Brazil has also explained that,
during the "implementation period", Article 9.4 allows developing country Members, such as India,
to provide export subsidies for (i) the "costs of marketing" or the "costs of i nternational transport
and freight" (Article 9.1(d)) or (ii) through internal transport subsidies (Article 9.1(e)). Thus,
consistent with Articles 3.3 and 8, India is not permitted to provide export subsidies for sugar falling
under Article 9.1(a). Again, India does not disagree with this part of the legal framework.
64. India has invoked, only with respect to the MAEQ Scheme, Article 9.4 (asserting that it falls
within Articles. 9.1(d) and (e) and that the "implementation period" continues). As summarized
below (Section 0), Brazil has established that the export subsidies under the MAEQ Scheme fall
under Article 9.1(a). Since India was unable to show that the MAEQ Scheme falls under Article 9.1(d)
or (e), Brazil does not consider it necessary for the Panel to resolve the question whether Article 9.4
continues to apply today.
2. India provides export subsidies within the meaning of Article 9.1(a) of
the Agreement on Agriculture

65. As summarized below, Brazil has established that India is providing Article 9.1(a) export
subsidies for sugar, in violation of Article 3.3 and 8 of the Agreement on Agriculture.
a. Export subsidies within the meaning of Article 9.1(a) of the Agreement on
Agriculture
66. Article 9.1(a) refers to "the provision by governments or their agencies of direct subsidies,
including payments-in-kind, to a firm, to an industry, to producers of an agricultural product, to a
cooperative or other association of such producers, or to a marketing board, contingent on export
performance".6 To assess whether a measure constitutes an export subsidy, within the meaning of
Article 9.1(a), it must involve "direct subsidies" that are "contingent on export performance", and it
must feature relevant grantors and relevant recipients. India does not disagree.
67. The Agreement on Agriculture does not define the term "subsidy" or "direct subsidies".
Previous panels and the Appellate Body have found that the subsidy definition under the
SCM Agreement is "highly relevant context for the interpretation of the word ‘subsidy' within the
meaning of the Agreement on Agriculture". 7 Consistently with the SCM Agreement definition, the
Appellate Body explained that a "subsidy", within the meaning of Article 9.1(a) of the Agreement on
Agriculture, "involves a transfer of economic resources from the grantor to the recipient for less than
full consideration".8
68. The term "direct" denotes a relationship between a subsidy grantor and the recipient.
Indeed, the remainder of Article 9.1(a) identifies specific entities as relevant grantors and recipients.
The relevant granting authorities are either "governments or their agencies", and the relevant
recipients are "producers of an agricultural product, a cooperative or other association of such
producers", or "a marketing board". India agrees.
69. Thus, "direct subsidies", within the meaning of Article 9.1(a), include the transfer of
economic resources from "governments or their agencies" to "producers of an agricultural product,
a cooperative or other association of suc h producers", or "a marketing board". Such transfer of
economic resources must be for less than full consideration.
70. The terms "contingent on export performance" or "contingent upon export performance"
appear in Articles 1(e) and 9.1(a) of the Agreemen t on Agriculture, and Article 3.1(a) of the
SCM Agreement. The Appellate Body clarified that there is no reason to read the requirement of
export contingency differently in the SCM Agreement and in the Agreement on Agriculture. Thus,
export contingency under Article 9.1(a) of the Agreement on Agriculture requires a "relationship of

6 Emphasis added.
7 Panel Report, US – FSC, para. 7.150. See also Appellate Body Report, US – Upland Cotton, para. 571.
8 Appellate Body Report, Canada – Dairy, para. 87.
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conditionality or dependence", or a "tie" between the granting of the subsidy and actual or
anticipated exportation.9 Once again, India agrees.
b. The challenged measures consti tute export subsidies, within the meaning
of Article 9.1(a) of the Agreement on Agriculture
71. India did not generally dispute the arguments and evidence provided by Brazil in applying
the legal standard to the facts of the measures at issue, as summarize d below. Indeed, India
accepted that each of the measures is consistent upon export performance. India argued instead
that (i) Brazil had allegedly failed to provide evidence of actual payments for all of the export
subsidies at issue, and (ii), in the alternative, that the MAEQ Scheme is allegedly an export subsidy
under Article 9.1(d) or (e) that is covered by Article 9.4. Brazil explains that India erred with both
arguments in Sections 0 and 0, further below.
i. Scheme for Assistance to Sugar Mills for the 2018/19 season
72. Brazil has established that India provides, under the Scheme for Assistance to Sugar Mills
for the 2018/19 sugar season, export subsidies, within the meaning of Article 9.1(a).
73. Under the Scheme for Assistance to Sugar Mills for the 2018/19 sugar season, India provides
"direct subsidies" to eligible sugar mills in the form of direct payments. Eligible sugar mills receive
INR 13.88 for every 100 kilograms of sugarcane crushed. For the implementation of this Scheme,
India made available from the Central Government's budget INR 20 billion in financial year 2019/20,
and INR 2 billion in financial year 2020/21. Since payments under the Scheme are made gratuitously,
the Scheme provides for a transfer of economic resources from the Central Government to sugar
mills for less than full consideration, and thus constitutes a "direct subsidy".
74. The "direct subsidies" under the Scheme are also "contingent on export performance". To
be eligible for the direct payments, sugar mills must prove that they have complied fully with all
orders/directives of the DFPD to the sugar mills applicable for the 2018/19 sugar season. This
includes the DFPD Order on MIEQ for the 2018/19 season, which requires sugar mills to export their
allocated MIEQs of sugar before 30 September 2018. Thus, by requiring that sugar mills comply fully
with the applicable DFPD orders/directives, the Scheme ties eligibility for the direct subsidy to the
sugar mills' export performance in fulfilling the MIEQs, making the subsidy under this Scheme export
contingent.
ii. Scheme for Creation and Maintenance of Buffer Stock in 2018
75. Brazil has established that India provides, under the Scheme for Creation and Maintenance
of Buffer Stock, export subsidies, within the meaning of Article 9.1(a).
76. Under the Scheme for Creation and Maintenance of Buffer Stock in 2018, India provides
"direct subsidies" to eligible sugar mills in the form of direct payments. Eligible sugar mills receive
payments for reimbursement of interest, insurance and storage charges. For the implementation of
this Scheme, India disbursed from the Central Government's budget INR 2 bi llion in financial year
2018/19, and made available INR 4.5 billion in financial year 2019/20. Since payments under this
Scheme are made gratuitously, the Scheme provides for a transfer of economic resources from the
Central Government to sugar mills for l ess than full consideration, and thus constitutes a "direct
subsidy".
77. The "direct subsidies" under the Scheme are also "contingent on the export performance".
To be eligible for the direct payments, the sugar mills are required to comply fully with all the
orders/directives issued by the Department of Food & Public Distribution for compliance during the
2018/19 sugar season. This includes the DFPD orders/directives that require sugar mills to export
the allocated MIEQs. Thus, by requiring that sugar mills comply fully with the applicable DFPD
orders/directives, the Scheme ties eligibility for the direct subsidy to the sugar mills' export
performance in fulfilling the MIEQs, making the subsidy under this Scheme export contingent.

9 Appellate Body Report, US – FSC, paras. 141-142. See also Appellate Body Report, US – Upland Cotton,
paras. 571-572.
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iii. Scheme for Creation and Maintenance of Buffer Stock in 2019
78. Brazil has established that India provides, under the Scheme for Creation and Maintenance
of Buffer Stock in 2019, export subsidies, within the meaning of Article 9.1(a).
79. Under the Scheme for Creation and Maintenance of Buffer Stock in 2019, India provides
"direct subsidies" to eligible sugar mills in the form of direct payments. Eligible sugar mills receive
payments for reimbursement of interest, insurance and storage charges. For the implementation of
this Scheme, India made available from the Central Government's budget INR 1 billion in financial
year 2019/20 and INR 2 billion in financial year 2020/21. Since payments under this Scheme are
made gratuitously, the Scheme provides for a transfer of economic resources from the Central
Government to sugar mills for less than full consideration, and thus constitutes a "direct subsidy".
80. The "direct subsidies" under the Scheme are also "contingent on the export performance".
Sugar mills that fulfil their expor ted requirements under the MIEQ for the 2018/19 season are
provided additional payments, compared to those mills that failed to do so. Thus, by enhancing the
subsidies provided sugar mills that fulfil the requirements under the MIEQ for the 2018/19 season,
the Scheme ties eligibility for the full amount of direct subsidies to sugar mills' export performance
in fulfilling the MIEQs, making the subsidy under this Scheme export contingent.
iv. Scheme for Assistance to Sugar Mills for the 2017/18 season
81. Brazil has established that India provides, under the Scheme for Assistance to Sugar Mills
for the 2017/18 season, export subsidies, within the meaning of Article 9.1(a).
82. Under the Scheme for Assistance to Sugar Mills for the 2017/18 season, India provid es
"direct subsidies" to eligible sugar mills in the form of direct payments. Eligible sugar mills receive
INR 5.5 for every 100 kilograms of sugarcane crushed. For the implementation of this Scheme, India
disbursed from the Central Government's budget INR 3.76 billion in financial year 2018/19, and
made available INR 630 million in financial year 2019/20. Since payments under the Scheme are
made gratuitously, the Scheme provides for a transfer of economic resources from the Central
Government to sugar mills for less than full consideration, and thus constitutes a "direct subsidy".
83. The "direct subsidies" under the Scheme are also "contingent on export performance". By
requiring that sugar mills have complied fully with the applicable DFPD orders/directives, the Scheme
requires sugar mills to export the allocated MIEQ of sugar within a certain time frame. Thus, by
requiring that sugar mills comply fully with the applicable DFPD orders/directives, the Scheme ties
eligibility for the direct subsidy to the sugar mills' export performance in fulfilling the MIEQs, making
the subsidy under this Scheme export contingent.
v. Scheme for Extending Production Subsidy to Sugar Mills for the
2015/16 season
84. Brazil has established that India provides, under the Scheme for Extending Production
Subsidy to Sugar Mills for the 2015/16 sugar season, export subsidies, within the meaning of Article
9.1(a).
85. Under the Scheme for Extending Production Subsidy to Sugar Mills for the 2015/16 sugar
season, India provides "direct subsidies" to eligible sugar mills in the form of direct payments.
Eligible sugar mills receive INR 4.5 for every 100 kilograms of sugarcane crushed. For the
implementation of this Scheme, India disbursed from the Central Government's budget INR 5. 22
billion in financial year 2016/17 and INR 227.2 million in financial year 2017/18. Since payments
under this Scheme are made gratuitously, the Scheme provides for a transfer of economic resources
from the Central Government to sugar mills for less than full consideration, and thus constitutes a
"direct subsidy".
86. The "direct subsidies" under the Scheme are also "contingent on export performance". To
be eligible for the direct payment, the Scheme provides that sugar mills must have achieved at least
80 per cent of the MIEQ obligations. Thus, by tying the eligibility for the subsidies under this Scheme
to the sugar mill's fulfillment of their MIEQ obligations, the Scheme ties eligibility for the direct
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subsidy to the sugar mills' export performance in fulfilling the MIEQs, making the subsidy under this
Scheme export contingent.
vi. MAEQ Scheme for the 2019/20 season
87. Brazil has established that India provides, under the MAEQ Scheme for the 2019/20 season,
export subsidies, within the meaning of Article 9.1(a).
88. Under the MAEQ Scheme, India provides "direct subsidies" to eligible sugar mills in the form
of a direct payment. Eligible sugar mills receive a lump sum payment of INR 10,448 for every ton of
sugar exported. For the implementation of this Sch eme, India made available from the Central
Government's budget INR 5.5 billion in financial year 2019/20 and INR 2 billion in financial year
2020/21. Since payments under the MAEQ Scheme are made gratuitously, the Scheme provides a
transfer of economic resources from the Government to sugar mills for less than full consideration,
and thus constitutes a "direct subsidy".
89. The "direct subsidies" under the MAEQ Scheme are also "contingent on export performance".
To be eligible for the direct payment, the sugar mills must fulfill their pre -allocated MAEQ export
quota. Thus, by tying the eligibility of the subsidy under the MAEQ Scheme to fulfillment of this
export quota, the Scheme ties eligibility for the direct subsidy to the sugar mills' export performance
in fulfilling the MAEQ, making the subsidy under this Scheme export contingent.
c. India has failed to rebut Brazil's argument and evidence demonstrating that the
six measures at issue constitute Article 9.1(a) export subsidies
90. As noted, India did n ot engage directly with Brazil's argument and evidence under
Article 9.1(a) of the Agreement on Agriculture. Instead, India argued that a panel can find export
subsidies under Article 9.1 of the Agreement on Agriculture only where there is evidence that th e
government has actually paid a financial contribution. India asserted that Brazil had not met its
burden to demonstrate the "making" of a financial contribution.
91. At the outset, Brazil emphasizes that India's argument is moot. This is because, although
not required to do so, Brazil has in fact placed evidence before the Panel demonstrating actual
disbursements of funds for each of the export subsidies at issue. Accordingly, even if the Panel were
to accept India's erroneous legal theory, the unrebutted evidence shows that fund s have actually
been disbursed under each export subsidy at issue.
92. Moreover, and contrary to India's argument, neither the Agreement on Agriculture nor the
SCM Agreement require showing actual disbursement of funds to establish the existence of a
subsidy. Instead, both permit establishing the existence of a subsidy on the basis of a legal
instrument that provides for its payment – i.e., based on the evidence from the legal instruments
providing for the export subsidies, as summarized in the previous section.
93. Article 9.1(a) of the Agreement on Agriculture concerns "the provision" of a direct subsidy
that is contingent on export performance. The term "provision" refers to the action of making
available. It does not require evidence of actual disbursements. Instead, evidence of a commitment
to disburse funds, for example from a legal instrument, suffices for there to be the "provision" of a
subsidy under Article 9.1(a). This conclusion is supported by the context of Article 9.2(a)(i), which
clarifies that a Member with an export subsidy reduction commitment may neither allocate nor incur
any amount of export subsidy in excess of its commitment level. For Members without an export
subsidy reduction commitment, such as India, this means that no amount of export subsidy may be
allocated, let alone incurred. In short, India's argument regarding the need for evidence of actual
disbursements fails under the terms of the Agreement on Agriculture.
94. India also sought to ground its flawed arguments on the definition of a " subsidy" in the
SCM Agreement. Again, India's argument fails. One way of establishing the existence of an export
subsidy under Article 9.1(a) of the Agreement on Agriculture may be to demonstrate that the
measure at issue involves a "financial contribution" listed in Article 1.1(a)(1) of the SCM Agreement
that confers a "benefit". However, Article 1.1(a)(1)(i) provides that a "financial contribution" exists
where "a government practice involves" "a direct transfer of funds (e.g. grants, loans, and equity
infusion), potential direct transfers of funds or liabilities (e.g. loan guarantees)". The examples of
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relevant forms of "financial contribution" in Article 1.1(a)(1)(i) – in particular, " potential direct
transfer of funds"10 – demonstrate that the actual di sbursement of funds is not dispositive of the
question of whether a "financial contribution" exists. Thus, India's argument regarding the need for
evidence of actual disbursements also fails under the terms of the SCM Agreement.
95. Having failed on these arguments, India next asserted that the requirement of actual
disbursement of funds applies to at least one form of "financial contribution" – namely, a "direct
transfer of funds" and, in particular, "grants". India focused on the term "transfer" to argue that a
grant requires showing actual disbursement of funds. Again, India erred.
96. A commitment to provide a grant itself amounts to a "direct transfer of funds" in the form
of a "grant". The dictionary meaning of "transfer" is "[t]he action of transferri ng or fact of being
transferred; conveyance or removal from one place, person, etc., to another; to convey or make
over (title, right, or property) by deed or legal process".11 It covers both the "action of transferring",
for example a payment, as well as the existence of a legal process for the transfer of funds, for
example a commitment to pay. In US – Carbon Steel (India), the Appellate Body confirmed that the
term "a direct transfer of funds" in Article 1.1(a)(1)(i) only speaks to the manner or method by
which the funds are conveyed. It does not speak to the timing of disbursements of the funds, or
requires evidence of actual disbursements. The Appellate Body further noted that the use of the
word "involve" preceding the term "a direct transfer o f funds" suggests that "the government
practice need not consist, or be comprised, solely of the transfer of funds, but may be a broader set
of conduct in which such a transfer is implicated or included".12 Therefore, a "transfer of funds" can
be established by evidence of a "government practice" that involves a "legal process", for example
in the form of a legal instrument that sets out an obligation to pay or a right to receive or retain
funds. Article 1.1(a)(1)(i) of the SCM Agreement, thus, covers gover nment practices that can
implicate disbursements of funds, for example, by making available economic resources to be
transferred to the recipient in the form of a grant.
97. In addition to being unsupported by the text of the relevant agreements, India's theory
would also open the door to circumvention of the export subsidies obligations. Where a Member
adopts annual export subsidy measures, such as India's measures at issue, evidence of actual
disbursements would only ever become available after payments have been made, such that those
measures could never be challenged effectively in WTO dispute settlement.
98. Finally, India also argued that demonstrating a grant confers a "benefit", under Article 1.1(b)
of the SCM Agreement, required evidence of a mar ket benchmark. Relying on the distortions of
India's sugar market from the FRP and SAPs, India argued that there can be no reliable market
benchmark against which to assess whether its grants to sugar mills confer a "benefit". India's
argument is absurd. T he market at issue is the market for financing, and that market does not
provide free money. Grants therefore confer a "benefit".
d. India's alternative argument with respect to only the MAEQ Scheme fails to show
that the MAEQ Scheme is an Article 9.1(d) o r (e) export subsidy that could be
covered by Article 9.4
99. With respect to the MAEQ Scheme only, India developed an alternative argument,
contending that the MAEQ Scheme falls within the scope of Articles 9.1(d) and (e) of the Agreement
on Agriculture and, on that basis, is permitted under Article 9.4. India erred.
100. Regardless of whether Article 9.4 continues to allow developing country Members to provide
certain Articles 9.1(d) or (e) export subsidies, India has failed to establish that the MAEQ Sc heme
provides those types of export subsidies. Instead, the weight of the evidence on the record shows
that the MAEQ Scheme does not involve export subsidies under Articles 9.1(d) or (e).

10 Emphasis added.
11 Oxford English Dictionary, OED Online, "transfer v.", available at:
https://www.oed.com/view/Entry/204699?rskey=eMKMeQ&result=2&isAdvanced=false#eid, last viewed 18
March 2021, (Exhibit BRA-3).
12 Appellate Body Report, US – Carbon Steel (India), paras. 4.89-4.90.
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101. India argued, in essence, that because the legal instrument set ting out the MAEQ Scheme
uses certain language also used in Article 9.1(d) and (e), the export subsidies provided thereunder
automatically qualify as export subsidies falling under Articles 9.1(d) and (e). However, rather than
the replicating certain words in a measure, Articles 9.1(d) and (e) require the existence of qualitative
and quantitative relationships between the receipt of the subsidy and the incurrence of the types of
costs or charges listed under Articles 9.1(d) and (e).
102. Qualitatively, the term "to reduce" in Article 9.1(d) denotes a rational relationship between
the subsidy and either the "costs of marketing" or the "costs of international transport and freight".
For "costs of marketing", only export subsidies that serve to reduce "specific types of costs that are
incurred as part of and during the process of selling a product" can be covered under Article 9.1(d).13
For an export subsidy to be covered by Article 9.1(e), the legal text is unambiguous that the
subsidies must take the form of "internal transport and freight charges" that are "more favourable
than for domestic shipment".
103. Quantitatively, at a minimum, the subsidy amounts must not exceed the actual costs under
the relevant cost categories or charges. India agrees.
104. These qualitative and quantitative relationships, and the resulting scope of Articles 9.1(d)
and (e), must be interpreted strictly and narrowly, such that Article 9.4 is not applied in a manner
that would circumvent reduction commitments.
105. As noted, the required qualitative and quantitative relationships between the subsidy at issue
and the types of costs or charges listed under Articles 9.1(d) and (e) cannot be established merely
by replicating the language of these provisions. Instead, they must be reflect ed in the measure
considered as a whole, including its structure, design and operation. Although not required to do so
(as it was India that asserted that the MAEQ Scheme falls under Articles 9.1(d) and (e)), Brazil has
proffered argument and evidence to d emonstrate that the MAEQ Scheme, considered as a whole,
including its structure, design and operation, and the export subsidies provided thereunder, do not
fall under these provisions. India has failed to rebut that argument and evidence.
106. First, Brazil has demonstrated that the stated purpose of the MAEQ Scheme, based on the
text of the measure, is to ensure the payment by sugar mills of sugarcane arrears owed to farmers.
That purpose is most starkly confirmed by the existence of a provision tha t requires government
payments to be made, on behalf of the sugar mills, to sugarcane farmers' bank accounts where
sugarcane arrears exist. The text and the design and operation of the MAEQ Scheme, therefore,
demonstrates that its purpose is not to offset transport and marketing costs incurred by sugar mills
in relation to export sales.
107. Second, Brazil has demonstrated that the MAEQ Scheme does not involve the qualitative
aspects of subsidies covered by Articles 9.1(d) and (e). Article 9.1(d) only covers export subsidies
that serve to reduce "specific types of costs that are incurred as part of and during the process of
selling a product".14 However, under the MAEQ Scheme, sugarcane arrears arise because sugar mills
have purchased sugarcane, prior to the process of producing and selling sugar. Faced with this
evidence, India argued that, by improving the liquidity of sugar mills, payments under the MAEQ
Scheme ultimately reduce the cost of marketing. However, this extreme stretch of the coverage of
Article 9.1(d) has already been roundly rejected by the Appellate Body in US – FSC. As the Appellate
Body explained, if purchasing raw materials could be considered as an example of "costs of
marketing" for export, then so too can virtually any other cost incu rred by a business engaged in
exporting.15
108. Nor can the MAEQ Scheme fall under Article 9.1(e) of the Agreement on Agriculture, because
a direct payment simply does not constitute "internal transport and freight charges" under this
provision.
109. Third, Brazil has demonstrated that the application of a single and unchanging MAEQ subsidy
rate per ton of sugar exported for all subsidy recipients reveals that, quantitatively, the MAEQ

13 Appellate Body Report, US – FSC, para. 130.
14 Appellate Body Report, US – FSC, para. 130 (emphasis in original).
15 Appellate Body Report, US – FSC, para. 131.
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Scheme does not provide for export subsidies covered by Article 9.1(d) or (e). To be eligible for the
lump sum MAEQ export subsidy, sugar mills do not need to show that they have actually incurred
costs under any of the items listed; nor are they required to show actual expenditure under any of
the cost items. This s ingle-rate design of the MAEQ Scheme does not, and cannot, account for
whether a recipient actually incurs certain cost, and, even if such costs are incurred, the actual level
of the costs. The lump sum subsidy that sugar mills receive under the MAEQ Schem e simply bears
no rational relationship to any of the costs that the MAEQ Scheme allegedly covers.
110. Consistent with these points, Brazil has proffered evidence showing that significant
quantities of sugar exports from India benefit from subsidies unde r the MAEQ Scheme, and that
those subsidies far exceed the relevant cost allegedly covered under the Scheme. Unsurprisingly,
therefore, the audited annual reports of various sugar mills in India reveal that the recipients of
subsidies under the MAEQ Scheme consistently treat the grants received as other revenue, rather
than as an offset against transportation or marketing costs incurred.
111. Faced with Brazil's uncontestable argument and evidence showing that the MAEQ Scheme
does not involve Article 9.1(d) or (e) export subsidies, India turned to a flawed technical procedural
argument. India argued that Brazil bore the burden to establish a prima facie case that the MAEQ
Scheme is not covered by Article 9.4, and to do so in its First Written Submission, and that, having
allegedly failed to do so, Brazil's later arguments and evidence must all be rejected. Once again,
India erred.
112. It is wel l established in WTO law that the party who asserts the affirmative of a claim or
defense bears the burden of proof. Thus, contrary to India's assertion, it was India's, and not Brazil's,
burden to demonstrate that the MAEQ Scheme is an export subsidy under Articles 9.1(d) or (e). This
is because it was India that raised Article 9.4 and Articles 9.1(d) and (e) in its First Written
Submission. Yet, even assuming that the initial burden lay with the Brazil (which it did not), Brazil
has discharged that burden by submitting relevant argument and evidence in accordance with the
Panel's Working Procedures. As a result, and as summarized above, the Parties have fully briefed
the substance of the issue raised by India. Since India has declined the many opportunitie s it has
had, or has been unable, to refute Brazil's arguments and evidence, there is also no issue of due
process. Nor is there any other legal basis for the Panel to decline discharging its duty under Article
11 of the DSU to make an objective assessment of the matter, including the evidence, before it. In
short, India's argument relating to the allocation of the initial burden of proof is simply a distraction,
and is irrelevant to the resolution of the present dispute.
C. Conclusion
113. As summarized above, Article 3.3 and Article 8 of the Agreement on Agriculture, read
together with Section II of Part IV of India's Schedule, preclude India from providing export subsidies
for sugar, within the meaning of Article 9.1(a) of the Agreement on Agriculture. Nonetheless, India
provides Article 9.1(a) export subsidies for sugar. In so doing, India acts inconsistently with
Articles 3.3 and 8.
IV. INDIA'S PRELIMINARY RULING REQUEST
114. With its First Written Submission, India filed a Request for a Preliminary Ruling by the Panel.
India alleged, first, that certain legal instruments, which it erroneously identified as "measures" at
issue, had expired prior to the establishment of the Panel, and that those alleged "measures",
therefore, fell outside the Panel's terms of reference. India also asserted that the Panel does not
have jurisdiction over subsidies provided under the MAEQ Scheme, because that Scheme was
enacted after the establishment of the Panel. India erred. As summarized below, under the applicable
legal standard, the question whether a measure exists at the time of Panel establishment is not
determinative of a panel's terms of reference.
A. The Panel Has Authority to Examine the Legal Instruments that India Asserts
Have Expired Prior to the Panel Establishment
115. In response to India's first argument, Brazil explained that the Panel's terms of reference
are governed by Articles 7.1 and 6.2 of the DSU. The Panel was established by the DSB with the
standard terms of reference envisaged in Article 7.1. These terms of reference require the Panel to
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examine "the matter" set out in Brazil's panel request. Specifically, the Panel is called upon to assess
the consistency of those of India's measures that are identified in Brazil's panel request with t he
provisions of the Agreement on Agriculture listed therein, and to make such findings as will assist
the DSB in making the recommendations or in giving the rulings provided for in that agreement.
Article 6.2 of the DSU, in turn, requires Brazil's panel r equest to "identify the specific measures at
issue and provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly".16
116. Brazil explained that it properly identified three sets of measures at issue: (i) the FRP, (ii)
SAPs, and (iii) other non-exempt support for sugarcane (rather than specific legal instruments that
from time to time provide for these measures). Brazil also explained that it properly set out the legal
basis for its claims associated wi th these measures. The Panel, therefore, has authority to review
these three sets of measures (which India did not assert have ceased to exist). Thus, rather than
constituting the measures at issue, the legal instruments cited by India as allegedly having expired
merely constitute evidence of the existence of the three sets of measures Brazil challenges.
117. In any event, the Panel is not precluded from making findings and recommendations on
measures that have expired, where those measures are specificall y identified in the panel request,
and hence are within a panel's terms of reference. This is the case here, irrespective of whether the
contested instruments are characterized as legal instruments that evidence the existence of
specifically identified measures (as Brazil argues), or as measures at issue (as India would style the
contested instruments). The Panel is justified in making findings and recommendations on expired
measures, for example, where the expired measures continue to affect the operation of a covered
agreement (here the Agreement on Agriculture), and where findings and recommendations
contribute to a position solution of the dispute. Thus, contrary to India's arguments, expiry of a
measure is simply not a basis for the Panel to decline validly conferred jurisdiction.
B. The Panel Has the Authority to Examine the MAEQ Scheme
118. In response to India's second argument, Brazil has established that, contrary to India's
assertion, Article 6.2 of the DSU does not categorically preclude the inclusion in a panel request and
a panel's term of reference of measures that come into existence or are completed after a panel
request. Instead, where the terms of the panel request at issue so permit, measures enacted
subsequent to the establishment of the panel may, in certain limited circumstances, fall within a
panel's terms of reference.
119. An assessment of whether a post -establishment measure falls within a panel's terms of
reference is a substantive rather than a formalistic one, requiring a panel to consider the following:
(i) whether the terms of the panel request permit the identification of the post -establishment
measure; (ii) whether the original and the subsequent measures are "in essence, the same"; and
(iii) whether findings and recommendations on the post-establishment measure would be necessary
to bring about a prompt and positive resolution of the dispute, under Articles 3.3 and 3.7 of the
DSU. Brazil has established that the MAEQ Scheme satisfies these three requirements.
120. First, Brazil's panel request is broad enough to cover the MAEQ Scheme. The express wording
of its panel request identifies the specific measures at issue as including "Federal level export
subsidies pertaining to sugar and sugarcane which make the provision of financial support contingent
on export subsidies", including certain legal instruments identified by name as well as "all other
Federal-level instruments, including all successor instruments, and any amendments thereto,
providing Federal-level subsidies contingent on export performance during the 2014/15, 2015/16,
2016/17, 2018/19 seasons and subsequent seasons". The request also covers any "related,
successor, replacement or implementing measures". The MAEQ Scheme fits comfortably within the
express wording of Brazil's panel request as a "Federal-level instrument[]… providing Federal-level
subsidies contingent on export performance" during a "subsequent season{}". The MAEQ Scheme
is also closely "related" to the export subsidies that Brazil specifically identified in its panel request.
121. Second, the MAEQ Scheme is, in essence, the same as India's export subsidies policies in
previous sugar seasons (i.e., the sugar seasons 2015/16, 2017/18 and 2018/19). The MAEQ Scheme
shares the same policy purpose and the same design, structure and impact as earlier export

16 See Appellate Body Report, Argentina – Import Measures, para. 5.39.
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subsidies. Even though India adopts different names for those subsidies, the policy objectives of
each of them, and the MAEQ Scheme, are the same – to address the chronic issues of arrears owed
by sugar mills to sugarcane farmers. Furthermore, the associated export quota regimes all operate
to evacuate the surplus sugar stocks.
122. Finally, Brazil has shown that findings and recommendations covering the MAEQ Scheme are
necessary for the prompt and positive resolution of the dispute, especially in light of India's recurring
pattern of providing direct subsidies contingent upon fulfillment of minimum ex port volume
requirements. Given the fundamental disagreement between India and Brazil on the legal
characterization of the MAEQ Scheme, Brazil has shown that it is necessary for the Panel to examine
the nature of this scheme in order to provide clarity as to whether a measure such as the MAEQ
Scheme can benefit from any exemption under Article 9.4 of the Agreement on Agriculture, as India
argues, or whether it falls under Article 9.1(a), as Brazil has established.
123. For these reasons, Brazil requests th at the Panel finds that the MAEQ Scheme is within its
terms of reference, and make findings and recommendations covering the MAEQ Scheme.
V. CONCLUSION
124. In concluding, Brazil requests that the Panel make the following findings:
• India has provided domestic support to sugarcane producers in excess of the de minimis
threshold of 10 per cent of the total value of production for sugarcane. Therefore, India
has acted inconsistently with its obligations under Article 7.2(b) of the Agreement on
Agriculture.
• India has provided export subsidies, within the meaning of Article 9.1(a) of the
Agreement on Agriculture, in a manner inconsistent with Article 3.3 and Article 8 of the
Agreement on Agriculture.
Article 19.1 of the DSU requires that a panel "shall recommend that the Member concerned bring
the measure into conformity with [a] covered agreement" where "a measure is inconsistent with a
covered agreement". Brazil, therefore, requests the Panel to recommend that India bring its
measures into conformity with the Agreement on Agriculture.
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ANNEX B-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA
I. INTRODUCTION
1. Australia has brought this dispute because it is concerned that the significant support India
provides to its producers of sugarcane and sugar is inconsistent with India's obligations under the
Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures
(SCM Agreement). Australia does not take issue with India's right to support its sugarcane farm ers
and sugar industry. However, India must do so consistently with its WTO obligations. Australia is a
major exporter of sugar and considers that India's measures have a detrimental impact on Australia's
interests.
2. The evidence and arguments Australia has set out in its submissions establish a prima facie
case that India maintains domestic support for sugarcane producers that vastly exceeds its
permissible level under the Agreement on Agriculture, and provides export subsidies for sugar in
violation of its commitments under both the Agreement on Agriculture and the SCM Agreement.
Further, Australia has demonstrated that India has breached its obligations under those Agreements
(or, in the alternative, under the General Agreement on Tariffs and Trade 1994 ( GATT 1994)) by
failing to notify the WTO Membership of its measures relating to sugarcane and sugar.
3. As Australia has demonstrated in its submissions, India has failed to provide any legal or
factual basis to rebut Australia's prima facie case in respect of any of the claims advanced. Australia
asks the Panel to dismiss India's flawed defence of its measures, which is underpinned by
unpersuasive legal arguments based on clear misinterpretations of India's obligations.
4. Australia notes that India, in its first written submission, requested the Panel make a
preliminary ruling that certain "measures" challenged by Australia were outside the scope of the
Panel's terms of reference.1 Australia argued in response that India had failed to establis h that the
Panel lacked the authority to assess any elements of Australia's claims. 2 Australia's arguments on
the substantive issues before the Panel are summarized below.
II. MEASURES AT ISSUE
A. DOMESTIC SUPPORT
5. India provides domestic support for sugar cane producers in excess of its permitted level
under the Agreement on Agriculture through the following measures.
1. Fair and Remunerative Price
6. The key element of India's support for its sugarcane producers is the Fair and Remunerative
Price (FRP). The FRP is a mandatory minimum price, or floor price, set by the Central government
for each sugar season3 and payable by producers of sugar (sugar mills) for sugarcane.4
7. The Sugarcane (Control) Order 1966, made under the Essential Commodities Ac t 1955,
provides that the Central government may determine the FRP by notification in the Gazette of India.5

1 India's first written submission, paras. 32–46.
2 Australia's comments on India's request for a preliminary ruling; Australia's comments on India's
response regarding India's request for a preliminary ruling.
3 India's sugar season begins on 1 October and ends on 31 September of the following year.
4 Australia's first written submission, para. 23.
5 Sugarcane (Control) Order 1966 (Exhibit JE-45); Essential Commodities Act 1955 (Exhibit JE-43);
Australia's first written submission, paras. 24–26.
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Sub-clause 3(2) of that Order prohibits the sale or purchase of sugarcane at a price lower than the
FRP. Penalties for non-compliance include imprisonment and fines.6
8. India does not dispute that it fixes the FRP or the prices set in the sugar seasons from
2014–15 to 2019–20, as established by Australia's evidence.7
2. State Advised Prices
9. In addition to the Central-level FRP, some Indian States also set minimum prices that must
be paid for sugarcane. These are known as State Advised Prices (SAPs) and exist in parallel with the
FRP. In those States where a SAP applies, the sugar mills must pay the SAP instead of the FRP, and
the SAPs are the same as, or higher than, the FRP.8
10. Like the FRP, the SAPs are mandatory. The relevant State regulatory instruments generally
provide that contravention is an offence punishable by fines and imprisonment.9
11. Australia claims – and India does not contest 10 – that, during various sugar seasons
between 2014–15 and 2018–19, six Indian States (Bihar, Haryana, Punjab, Tamil Nadu, Uttarakhand
and Uttar Pradesh) set SAPs.11
3. Other State-level programmes
12. Three Indian State governments maintain or have maintained programm es that provide
assistance to sugarcane producers in addition to the support provided by the minimum sugarcane
price.
(a) Andhra Pradesh: Purchase tax remittance
13. Andhra Pradesh offered a purchase tax remittance of INR 60 per metric tonne in the 2014–
15 and 2015–16 sugar seasons. Under this programme, the purchase tax that would otherwise have
been payable by sugar mills was foregone, and the benefit was passed on to sugarcane farmers who
therefore received a price higher than the FRP.12
14. India claims that no expenditure was made under this programme.13 Australia disagrees.14
(b) Karnataka: Incentive price payment
15. In the 2017–18 sugar season, Karnataka provided a "Payment of Incentive Price for Sugar
Cane through Sugar Factories" under whic h sugarcane farmers received – via the sugar mills – an
incentive sugarcane price higher than the FRP.15
16. India argues that no expenditure was made under this programme.16 Australia disagrees.17

6 Essential Commodities Act 1955 (Exhibit JE-43), Section 7; Australia's first written submission, para.
37.
7 India's first written submission, paras. 16–18, 41; Australia's first written submission, Table 2.
8 Australia's first written submission, para. 41.
9 Australia's first written submission, para. 43.
10 India does not dispute that Haryana, Punjab, Uttarakhand and Uttar Pradesh set SAPs: India's first
written submission, paras. 29–30. India argues that Bihar and Tamil Nadu no longer set SAPs but does not
dispute that those States did, in the relevant past sugar seasons, set SAPs: India's first written submission,
paras. 30, 42(vii). See also, Australia's second written submission, paras. 18–20.
11 For details of the applicable sugar seasons and the SAPs in these States, see Australia's first written
submission, paras. 48–61, Tables 4–9.
12 Australia's first written submission, paras. 190–192; Australia's responses to Panel questions 28(c)
(paras. 84–86), 28(d) (paras. 87–91).
13 India's responses to Panel questions 28(d) (p. 20), 74(b) (p. 11).
14 Australia's comments on India's response to Panel question 74(b), paras. 31–32.
15 Australia's first written submission, para. 195; Australia's response to Panel question 77, paras. 94–
98.
16 India's response to Guatemala's question 3, p. 2.
17 Australia's comments on India's response to Guatemala's question 3, paras. 60–61.
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(c) Tamil Nadu: Production incentive payment
17. Under Tamil Nadu 's "production incentive to sugarcane farmers" programme, the State
government pays, directly to sugarcane farmers, the difference between Tamil Nadu's SAP for the
2016–17 sugar season and the relevant season's base FRP.18 Australia has adduced evidence of the
amounts disbursed under this programme in the 2017–18 and 2018–19 sugar seasons.19 India has
not challenged that evidence.
4. Other measures involving payments to maintain the FRP and
SAPs
18. India implements a range of other measures at both the Central and State levels that
provide domestic support in favour of sugarcane producers. Those measures are production
subsidies; soft loans; buffer stock subsidies; transport, freight and marketing subsidies; and other
State-level measures. Although the measures are directed to sugar mills, the funds are paid to mills
to support their payment of the FRP or applicable SAP, or are paid to sugarcane farmers on mills'
behalf to clear the mills' sugarcane price debts.20
19. With one minor exception, India does not dispute the facts regarding these measures. 21
Australia also challenges some of the same measures as providing export subsidies.
B. EXPORT SUBSIDIES
20. India violates its obligations under the Agreement on Agriculture and the SCM Agreement
through the measures described below, which provide export-contingent subsidies.
21. A central feature of India's regime of export subsidies for sugar are its Minimum Indicative
Export Quotas (MIEQ) and Maximum Admissible Export Quantities (MAEQ), under which India
allocates sugar export quotas to sugar mills on a per-mill basis. India ties MIEQ and MAEQ to direct
payment schemes, making financial assistance, or the value o f that assistance, contingent upon
compliance with government orders or directives imposing MIEQ and MAEQ.22
1. Production subsidy schemes operating in conjunction with
Minimum Indicative Export Quota orders
22. India provides production subsidies to sugar mi lls to help clear their debts to sugarcane
farmers arising from the obligation to pay the FRP. These schemes are the "Scheme for extending
production subsidy to sugar mills", implemented in the 2015–16 sugar season, and the "Scheme for
Assistance to Sugar Mills", implemented in the 2017–18 and 2018–19 sugar seasons. Mills' eligibility
to receive the subsidy is, under each iteration of the scheme, subject to compliance with MIEQ
orders.23
2. Buffer stock subsidy schemes operating in conjunction with
Minimum Indicative Export Quota orders
23. India provides buffer stock subsidies to assist sugar mills to clear sugarcane price debts
arising from the obligation to pay farmers the FRP. These schemes are the "Scheme for Creation
and Maintenance of Buffer Stock of 30 Lakh MT", introduced in 2018, and the "Scheme for the
Creation and Maintenance of Buffer Stock of 40 Lakh MT", introduced in 2019. The 2018 iteration of

18 Australia's first written submission, paras. 198–201. The "base FRP" is the minimum price payable for
sugarcane at or below the FRP's basic recovery rate (or quality). In the 2018–19 sugar season, sugarcane with
a recovery rate below the FRP's basic recovery rate received a minimum price lower than the base FRP:
Australia's first written submission, paras. 28–35, Table 2.
19 Australia's response to Panel question 73, paras. 71–75.
20 These measures are listed in Australia's first written submission, paras. 181–184, Annexes A–E.
21 India's first written submission, para. 43; Australia's second written submission, paras. 22–23.
22 Australia's first written submission, paras. 219–220.
23 Australia's first written submission, para. 230.
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the scheme linked compliance with MIEQ with eligibility to receive payments, while the 2019 iteration
linked favourable MIEQ performance with the value of available payments.24
3. Purported transport, freight and marketing subsidy scheme
operating in conjunction with Maximum Admissible Export
Quantities orders
24. India provides self-described "transport, freight and marketing" subsidies to sugar mills to
help them clear sugarcane price debts arising from the obligation to pay the FRP. India provides
these subsidies through the "Scheme for providing assistance to sugar mills for expenses on
marketing costs including handling, upgrading and other processing costs and costs of international
and internal transport and freight charges on export of sugar" (MAEQ scheme), which applied from
1 October 2019 to 31 December 2020. Eligibility to receive the subsidy is subject to mills exporting
at least 50% of their MAEQ allocations.25
4. Duty Free Import Authorisation scheme
25. India incentivizes mills to export sugar during seasons of overproduction by offering to
forego sugar import duties in subsequent seaso ns. In March 2018, India amended its Duty Free
Import Authorisation (DFIA) scheme in order to entitle sugar mills that exported refined sugar during
a six-month period in the 2017–18 sugar season to import raw sugar duty free during the 2019–20
and 2020–21 seasons.26
C. FAILURE TO NOTIFY MEASURES
26. India has not notified Members of its annual domestic support for sugarcane subsequent
to 1995–1996, and India has not submitted an export subsidy notification for sugar since 2009 –
10.27 India does not dispute these facts. This failure to submit notifications of its measures breaches
India's obligations under the Agreement on Agriculture and the SCM Agreement or, in the alternative,
under the GATT 1994.
III. INDIA'S DOMESTIC SUPPORT IN FAVOUR OF SUGARCANE PRODUCERS VIOLATES
ITS OBLIGATIONS UNDER THE AGREEMENT ON AGRICULTURE
27. Under the Agreement on Agriculture, India may provide domestic support in favour of its
agricultural producers, provided that support does not exceed its commitment levels. In the context
of the Agreement on Agriculture, domestic support is expressed in numerical – monetary – terms28
as an annual level of support, referred to as the "Aggregate Measurement of Support" (AMS).
Domestic support may be product-specific support provided for an agricultural product in favour of
the producers of that product, or it may be non -product- specific support provided in favour of
agricultural producers in general. 29 A Member's Total AMS is the sum of all of its non -exempt
domestic support in favour of agricultural producers, excluding support that does not exceed a
permitted de minimis level.30
28. Articles 6.4 and 7.2(b) of the Agreement on Agriculture provide that, where a developing
country Member has no Total AMS commitment in Part IV of its Schedule of Concessions on Goods
(Schedule), the Member must not provide non-exempt, product-specific domestic support in excess

24 Australia's first written submission, paras. 231–233, Annex C.
25 Australia's first written submission, para. 234, Annex D-03; Australia's opening statement at the first
substantive meeting, para. 76.
26 Australia's first written submission, para. 235; Australia's second written submission, paras. 214–217.
27 Australia's first written submission, paras. 450–466.
28 Agreement on Agriculture, Article 1(a) and Annex 3, paragraph 6. See also, Australia's first written
submission, para. 84.
29 Agreement on Agriculture, Article 1(a). See also, Article 6.4(a) and Annex 3; Australia's first written
submission, para. 86.
30 Agreement on Agriculture, Articles 1(h), 6.4 and 7.2(a). See also, Australia's first written submission,
paras. 87, 90, 94.
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of the de minimis level of 10 per cent of the total value of production of a basic agricultural product
during the relevant year.31
29. India is a developing country Member and agrees that it has no Total AMS commitment in
Part IV, Section I of its Schedule. 32 Thus, India's non -exempt domestic support for sugarcane
producers must not exceed 10 per cent of the total value of sugarcane production in any sugar
season.33
30. Some domestic support measures are exempt from reduction commitments pursuant to
Articles 6.2 or 6.5, or Annex 2.34 These measures are not included in the calculation of a Member's
Total AMS.35 India has not argued or adduced evidence that any of the domestic support measures
challenged by Australia are exempt.36
31. Annex 3 of the Agreement on Agriculture, which is titled "Domestic Support: Calculation of
Aggregate Measurement of Support", describes how to calculate a Member's AMS.37 Paragraph 1 of
Annex 3 provides that the product-specific AMS shall be calculated for each basic agricultural product
receiving "market price support, non -exempt direct payments, or any other subsidy not exempted
from the reduction commitment ('other non -exempt policies')". 38 Annex 3 as well as Annex 4
stipulate how to quantify the monetary value of each of these kinds of support to calculate a product-
specific AMS.
32. To determine whether non -exempt product -specific domestic support exceeds the de
minimis percentage, the product -specific AMS is divided by the total value of production of the
relevant basic agricultural product in the relevant year.39
33. India's domestic support measures in favour of its sugarcane producers constitute market
price support and other non-exempt support.
A. MARKET PRICE SUPPORT
1. The meaning of market price support
34. Australia considers that "market price support" must be interpreted in accordance with its
ordinary meaning, read in context, and in light of the Agreement on Agriculture's object and
purpose.40 Market price support will exist when a Member sets a price for a basic agricultural product
through administrative action and determines the production eligible to receive that price.41
35. India, on the other hand, advocates for an unjustifiably narrow interpretation of market
price support.42 A proper interpretation of the Agre ement on Agriculture demonstrates that India's
arguments are erroneous.

31 Australia's first written submission, paras. 98–100, 148. The Agreement on Agriculture provides in
Article 1 that "unless the context otherwise requires… (i) 'year'… in relation to the specific commitments of a
Member refers to the calendar, financial or marketing year specified in the Schedule relating to that Member."
32 India's response to Panel question 46, p. 4; Australia's first written submission, paras. 103–107.
33 Australia's first written submission, para. 108.
34 Australia's first written submission, para. 142.
35 Agreement on Agriculture, Article 7.2(a).
36 Australia's response to Panel question 51, para. 17.
37 Agreement on Agriculture, Article 1(a)(ii).
38 Agreement on Agriculture, Annex 3, paragraph 1.
39 Agreement on Agriculture, Article 6.4(a)(i). See, for example, the panel's approach in China –
Agricultural Producers, Tables 9–16, and para 7.412. See also, Australia's first written submission, paras. 145–
147.
40 Consistent with Article 31(1) of the Vienna Convention on the Law of Treaties, which forms part of the
customary rules of interpretation of public international law: Appellate Body Report, US – Gasoline, p. 17.
Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes provides that
the WTO covered agreements are to be interpreted in accordance with these rules: Australia's second written
submission, footnote 32.
41 Australia's second written submission, paras. 33, 50.
42 India's first written submission, paras. 62–63; India's responses to Panel questions 18(a) (p. 14),
25(b) (p. 18); India's opening statement at the first substantive meeting, para. 9; India's closing statement at
the first substantive meeting, paras. 24–28.
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(a) Ordinary meaning
36. "Market price support" is not defined in Article 1 of the Agreement on Agriculture, which
defines a range of terms used in the Agreement. Annex 4 of the Agreement states that market price
support is "defined in Annex 3".43
37. Paragraphs 1 and 8 of Annex 3 both refer to "market price support", so the interpretation
of the term should begin with those paragraphs.
38. Australia recalls that paragraph 1 lists the three kinds of domestic support that are, subject
to Article 6, to be included in the calculation of the product-specific AMS.44
39. India argues that the phrase "or any other subsidy" in paragraph 1 means that market
price support must take the form of a subsi dy.45 Australia disagrees. The words "any other" reflect
an intent to ensure that all non-exempt domestic support – including support that is neither market
price support nor a direct payment – is included in the AMS.46
40. Building on the tenuous foundation o f its interpretation of paragraph 1 of Annex 3, India
contends – based on the words "shall include both" – that paragraph 2 of that Annex provides an
exhaustive definition of what may constitute a subsidy under paragraph 1.47 Again, Australia
disagrees. Pa ragraph 2 simply provides that "both budgetary outlays and revenue foregone by
governments or their agents" 48 are subsidies that are included in the AMS calculation. The term
"includes" is not exclusive or restrictive, and the term "both" provides emphasis.49
41. The critical flaws in India's arguments become even more apparent in light of the only
other paragraph in Annex 3 that includes the words "market price support": paragraph 8. That
paragraph undermines India's defence, 50 which is why India has opted eit her to ignore 51 or to
downplay52 its significance.
42. Paragraph 8 of Annex 3 provides:
Market price support: market price support shall be calculated using the gap between a
fixed external reference price and the applied administered price multiplied by the quantity
of production eligible to receive the applied administered price. Budgetary payments made
to maintain this gap, such as buying-in or storage costs, shall not be included in the AMS.
43. The first sentence of paragraph 8 sets out the formula for calculating the value of market
price support to be included in the AMS, which may be represented by the following equation:
(Applied Administered Price – Fixed External Reference Price) x Quantity of Eligible
Production = value of market price support
44. The for mula has three components: an Applied Administered Price (AAP), the Fixed
External Reference Price (FERP) and a Quantity of Eligible Production (QEP). Pursuant to the second

44 See paragraph 31 above. See also, Australia's second written submission, para. 56, citing Chairman’s
note on options in the agricultural negotiations, MTN.GNG/AG/W/1/Add.4 (Exhibit JE-156), para. 3.
45 India's responses to Panel questions 18(a) (p. 14), 18(c) (p. 14); India's opening statement at the
first substantive meeting, paras. 24–25; India's second written submission, paras. 16–18.
46 Australia's second written submission, para. 57.
47 India's opening statement at the first substantive meeting, paras. 26–28; India's closing statement at
the first substantive meeting, para. 28; India's second written submission, paras. 20–24.
48 Agreement on Agriculture, Annex 3, paragraph 2 (emphasis added).
49 Australia's second written submission, paras. 59–64.
50 Australia's opening statement at the first substantive meeting, para. 48; Australia's opening
statement at the second substantive meeting, para. 38.
51 Australia's opening statement at the first substantive meeting, para. 48; Australia's second written
submission, para. 36; Australia's opening statement at the second substantive meeting, para. 35.
52 Australia's second written submission, paras. 25, 68–70; Australia's opening statement at the second
substantive meeting, paras. 36–39.
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sentence of paragraph 8, budgetary payments made to maintain the "gap" between the FERP and
the AAP are not included in the AMS.53
45. An AAP is a price that is set, determined, made effective or brought to bear by
administrative action (including regulatory action), rather than being determined only by market
forces. It need not be a pric e that is achieved by government expenditure and it need not involve
budgetary payments or procurement. 54 In China – Agricultural Producers , the panel found that
"applied administered price" means "… the price set by the government at which specified entities
will purchase certain basic agricultural products".55
46. The FERP is a reference price for the basic agricultural product from a base period (the
years 1986–88 for original Members), which may be adjusted for quality differences as necessary.56
47. The QEP is the quantity or volume of production entitled, fit or able to rec eive the AAP
according to the terms of the measure – not the amount that actually receives the AAP. 57 As the
panel in China – Agricultural Producers observed, "the pertinent question [to determine the QEP] is
whether the [product] that was produced would b e able to benefit from the [AAP] if the seller so
desired".58
48. Accordingly, market price support will exist and have a value measurable under
paragraph 8 when a Member sets an AAP for a basic agricultural product that is higher than the
relevant FERP, and determines the production eligible to receive the AAP.59
49. Paragraph 8 does not stipulate or imply that the government or its agents must procure
the product at the AAP. Thus, India's argument that market price support requires government
procurement is incompatible with the ordinary meaning of paragraphs 1 and 8 of Annex 3 and reads
into the text a limitation that is not there.60
50. India seeks to diminish the importance of paragraph 8 by arguing that it only provides how
to calculate market price support. Acc ording to India, it is paragraphs 1 and 2 of Annex 3 that
determine when market price support will exist. 61 India's argument finds no support in the text of
Annex 3. As Australia has already outlined, the purpose of Annex 3 is to stipulate the method for
calculating in monetary terms a Member's non-exempt domestic support or AMS.62 The Annex does
not differentiate between when market price support exists and how to calculate the value of such
support, as India argues.63
(b) Context
51. Articles 6.1 and 6.2, and Annex 4, of the Agreement on Agriculture, as well as India's
Schedule, each provide relevant context for interpreting "market price support" in this dispute, which
serves to reinforce the ordinary meaning of the term.

53 Australia's first written submission, paras. 113–115; Australia's opening statement at the first
substantive meeting, para. 49.
54 Australia's first written submission, paras. 116–119, citing Panel Report, Korea – Various Measures on
Beef, para. 827.
55 Australia's first written submission, para. 117, citing Panel Report, China – Agricultural Producers,
para. 7.177.
56 Agreement on Agriculture, Annex 3, paragraph 9. See also, Australia's first written submission, paras.
120–122.
57 Appellate Body Report, Korea – Various Measures on Beef, para. 120. See also, Panel Report, China –
Agricultural Producers, paras. 7.282–286; Australia's first written submission, paras. 123–130.
58 Panel Report, China – Agricultural Producers, para. 7.314. See also, Australia's first written
submission, paras. 123–130.
59 Australia's second written submission, para. 33. Market price support may also exist in the absence of
a FERP, in which case such support is calculated in accordance with the Agreement on Agriculture, Annex 4,
para. 2.
60 Australia's second written submission, paras. 34–35.
61 India's closing statement at the first substantive meeting, para. 14; India's second written
submission, para. 39.
62 See paragraph 31 above.
63 Australia's second written submission, paras. 68–70; Australia's opening statement at the second
substantive meeting, paras. 35–39.
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52. Article 6.1 provides that a Member's domestic support commitments "apply to all of its
[non-exempt] domestic support measures in favour of agricultural producers…" 64. The
Article confirms that the only domestic support measures that are not subject to a Member's
commitments are those that are exempt.65
53. Article 6.2 provides that both "direct" and "indirect" governmental measures of assistance
are subject to domestic support reduction commitments unless they are exempt. It indicates that
domestic support measures disciplined by the Agreement on Agriculture may be provided to
producers directly by government (or its agents) or through indirect means, such as by regulating
the price paid by consumers of a basic agricultural product.66
54. Annex 4 describes how to calculate an equivalent measurement of support when market
price support exists but it "is not practicable"67 to calculate that component of the AMS. Budgetary
outlays may only be used to calculate the value of market price support when it is not practicable to
use the formula in paragraph 8 of Annex 3 or the alternative methodology in paragraph 2 of Annex 4.
Also, the budgetary outlays are not limited to those used for government procurement of the product
– the outlays must simply be use d to maintain the price. Annex 4, therefore, adds further weight
to the argument that market price support may exist in the absence of budgetary outlays used to
procure the product at the AAP.68
55. Finally, the tables of supporting material incorporated by r eference in Part IV of India's
Schedule confirm that India considered the Sugarcane (Control) Order 1966 in force during the base
period had established an AAP and constituted market price support. 69 That Order, which was
amended in 2009 to introduce the F RP, fixed the minimum price of sugarcane to be paid by all
producers of sugar (the mills) to the producers of sugarcane (the farmers). Like the FRP, the floor
price was paid by the mills, not by the Indian government.70
56. India argues that Members' Schedules are not relevant to interpreting the meaning of
"market price support", and that relying on Schedules would result in terms having multiple
meanings.71 Australia disagrees. Members' Schedules may provide relevant context for interpreting
Members' legal obligations.72 A Member's Schedule cannot override the ordinary meaning of the
terms of the Agreement on Agriculture, as India implies it would, but a Schedule may provide
relevant context for interpreting those terms. In this instance, the context provided by India's
supporting tables reinforces the ordinary meaning of "market price support" and underscores India's
own interpretation of the term at the time of constituting its Schedule.73
(c) Object and purpose
57. The object and purpose of the Agreement on Agriculture support an interpretation of
"market price support" that is not limited to government procurement of a product at the AAP. The
Agreement's object and purpose, as stated in its preamble, is relevantly:

64 Agreement on Agriculture, Article 6.1 (emphasis added).
65 Australia's second written submission, paras. 38–39.
66 Australia's second written submission, para. 40.
68 Australia's second written submission, para. 42.
69 G/AG/AGST/IND, p. 28 incorporated by reference by India's Schedule, Part IV, Section I, Column 3.
In notifying its market price support for the base period (1986–88), in a table titled "Aggregate Measurement
of Support: Market Price Support", India lists the prices fixed by the Sugarcane (Control) Order 1966 then in
force as an "Applied administered price" and uses that price to calculate its market price support for sugarcane.
70 Australia's first written submission, para. 25; Australia's opening statement at the first substantive
71 India's second written submission, para. 50. See also, India's responses to Panel questions 48(e) (p.
6), 63 (p. 5).
72 Australia's second written submission, para. 45, citing Panel Report, China – Agricultural Producers,
para. 7.263 and Appellate Body Report, US – Gambling, paras. 178, 182.
73 Australia's second written submission, paras. 44–45; Australia's comments on India's response to
Panel question 63, paras. 7–11.
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• to achieve "substantial progressive reductions in agricultural support" through
specific binding commitments including with respect to "domestic support";74 and
• to discipline and reduce domestic support measures, with a view to preventing
distortions in world agricultural markets and establishing a "fair and market -
oriented agricultural trading system".75
58. Thus, the Agreement's objectives are broader than that of limiting domestic subsidies in
favour of agricultural products. If Members' domestic support commitments were limited t o
subsidies, as India contends, the Agreement on Agriculture would simply refer to subsidies for
agricultural products, rather than specifying three distinct kinds of domestic support, each with
alternative methods of calculation.76
59. India's argument that m arket price support requires procurement by government (or its
agents) would also undermine the domestic support disciplines in the Agreement by enabling
Members to easily circumvent their commitments by ensuring they (or their agents) did not procure
the product.77
60. Finally, India's interpretation of market price support would undermine the Agreement on
Agriculture's goal of preventing distortions in global agricultural markets. The Agreement recognises
price support as being inherently trade -distorting and as having production effects. 78 As
demonstrated by India's FRP and SAP measures, government mandated floor prices for basic
agricultural products impact production decisions and distort trade irrespective of who purchases the
product.79
(d) Conclusion
61. "Market price support" under the Agreement on Agriculture will exist when a Member
establishes an AAP and determines the production eligible to receive that AAP. India's argument that
procurement at the AAP by a government (or its agent) is essential is incompa tible with a proper
interpretation of "market price support".80
2. Calculation of India's market price support for sugarcane
(a) The FRP and SAP measures are AAPs
62. The FRP and SAPs are mandatory minimum prices for sugarcane that are determined by
the administrative action of India's Central and State governments. The FRP and SAPs are, therefore,
AAPs within the meaning of the Agreement on Agriculture.81
(b) India's FERP for sugarcane
63. India's supporting table incorporated by reference in Part IV of its Sch edule confirms that
its FERP is INR 156.16 per metric tonne for sugarcane with a recovery rate of 8.5 per cent. Australia
recalls that the FERP may be adjusted for quality differences. 82 As the average recovery rates – or
quality – of sugarcane in India today are higher than this historical recovery rate, Australia considers

74 Agreement on Agriculture, Preamble, recitals 3 and 4.
75 Agreement on Agriculture, Preamble, recitals 2 and 3. See also, Australia's first written submission,
para. 126.
76 Australia's second written submission, para. 58.
77 Australia's second written submission, para. 47.
78 Agreement on Agriculture, Annex 2, paragraph 1(b). See also, Australia's first written submission,
para. 126.
79 See the evidence that India's FRP and SAP measures impact production decisions cited in
footnote 171 of Australia's first written submission, para. 126. See also, Australia's second written submission,
para. 47.
80 Australia's second written submission, para. 50.
81 Australia's first written submission, paras. 153–156.
82 Agreement on Agriculture, Annex 3, paragraph 9. See paragraph 46 above.
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it necessary to adjust India's FERP to allow the AAP and the FERP to be compared at the same quality
level.83
(c) QEP
64. All sugarcane in India is fit or entitled to receive the FRP and, in States where SAPs apply,
all sugarcane produced is able to receive the relevant SAP. The relevant measures do not impose
any conditions or limitations on sugarcane that is eligible to be purchased at the FRP or SAP. 84 The
price payable may vary based on the quality of the sugarcane but all sugarcane – regardless of
quality – is entitled to receive a minimum price.85
(d) India's measures involving payments to maintain the "gap"
between the FERP and the AAP
65. Australia considers that India maintains measures – at both the Central and State levels –
that achieve or maintain the AAPs for sugarcane, being the FRP or SAPs.86 Consistent with the second
sentence of paragraph 8 of Annex 3, Australia has not included the budgetary outlays for these
measures in calculating Ind ia's AMS for sugarcane. However, Australia nonetheless considers that
they are measures through which India is providing or has provided non-exempt domestic support,
which should be covered by the Panel's findings.87
(e) India's market price support exceeds its permitted level
66. Australia has calculated India's market price support for sugarcane producers in the sugar
seasons 2014–15 to 2018 –19 using the formula in Annex 3 of the Agreement on Agriculture and
data from official Indian government instruments and pu blications. These calculations, a summary
of which is at Annex A, demonstrate that India's market price support, provided through its FRP and
SAP measures, vastly exceeds its permitted de minimis level.88 Thus, through its market price
support alone, India violates its obligations under the Agreement on Agriculture.
B. OTHER NON-EXEMPT DOMESTIC SUPPORT
67. In addition to market price support, India also provides other non-exempt domestic support
to it sugarcane producers in the form of non-exempt direct payments or other policies.
1. Calculation of India's other non -exempt domestic support for
sugarcane
68. Paragraphs 10, 12 and 13 of Annex 3 of the Agreement on Agriculture provide that the
value of other non-exempt domestic support measures may be measured using budgetary outlays.89
Australia recalls that the value of these measures should only be added to the product-specific AMS
if the budgetary payments are not made to maintain the gap between the FERP and the AAP.90
2. The Andhra Pradesh, Karnataka and Tamil Nadu programmes
69. The Andhra Pradesh purchase tax remittance, the Karnataka incentive price payment and
the Tamil Nadu production incentive payment programmes constitute "non-exempt direct payments"

83 Australia's first written submission, paras. 158–162; Australia's response to Panel question 62(a),
paras. 26–32.
84 Australia's first written submission, para. 164.
85 For instance, the FRP consists of a minimum or base price payable for sugarcane of a basic recovery
rate but premiums are payable for cane with higher recovery rates. In the 2018–19 and 2019–20 sugar
seasons, sugarcane with a recovery rate below the basic recovery rate received a lower floor price: Australia's
first written submission, paras. 28–35, Table 2.
86 These measures are listed in Australia's first written submission, paras. 182–183.
87 Australia's first written submission, paras. 181–186; Australia's response to Panel question 20(b),
paras. 47–51.
88 Australia's domestic support calculations, Microsoft Excel workbooks, Revision 3 (Exhibit AUS-1
(Revision 3)).
89 Australia's first written submission, paras. 135–143.
90 Agreement on Agriculture, Annex 3, paragraph 8. See paragraph 44 above.
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or "other subsid[ies] not exempted from the reduction commitment". 91 Under those programmes,
the State governments provide funds not directed towards paying – or, in other words, maintaining
– the FRP, which result in the sugarcane farmers receiving additional income. Thus, the budgetary
outlays for these programmes may be added to India's AMS for sugarcane, as Australia has done in
its calculations.92
70. However, in view of the very marginal increases in India's AMS for sugarcane that arise
from including the programmes' budgetary outlays, if the Panel finds that India's market price
support exceeds its permitted level, Australia considers that the Panel may decide to not to include
these programmes in India's AMS. If the Panel were to exercise judicial economy, Australia considers
that the Panel's ruling should nevertheless apply to all forms of India's non -exempt domestic
support, whether or not these were included in the AMS.93
C. INDIA'S AMS FOR SUGARCANE PRODUCERS VASTLY EXCEEDS ITS PERMITTED DE MINIMIS
LEVEL
71. Australia has established, through argument and evidence, that India's domestic support
in favour of its sugarcane producers – consisting of market p rice support and other non -exempt
support – vastly exceeds its permitted de minimis level. Australia's calculations of India's domestic
support in the sugar seasons from 2014 –15 to 2018–19, as summarized in Annex A, demonstrate
the magnitude of India's violation.94
72. By India's own admission, the principal measures through which it maintains this level of
domestic support – the FRP and SAPs – remain in effect.95
IV. INDIA'S EXPORT SUBSIDIES FOR SUGAR ARE INCONSISTENT WITH
ITS OBLIGATIONS UNDER THE AGREEMENT ON AGRICULTURE AND
THE SCM AGREEMENT
73. Under the Agreement on Agriculture, India has committed to limit its export subsidies to
producers of agricultural products. Pursuant to Articles 3.1(a) and 8 of the Agreement, India has
also undertaken not to provide export subsidies otherwise than in conformity with its scheduled
reduction commitments.
74. Under Article 3.3 of the Agreement on Agriculture, India has committed not to provide any
export subsidies of the kinds listed in Article 9.1 for unscheduled agricultural products. Further, it
has committed, under Article 10.1, not to use export subsidies of kinds not listed in Article 9.1, in a
manner that results in, or threatens to lead to, circumvention of its export subsidies reduction
commitments. The prohibition in Article 3.3 applies subject to Article 9.4, which concerns only export
subsidies of the kinds listed in Articles 9.1(d) and (e).96
75. India agrees that Part IV, Section II, of its Schedule contains no export subsidy reduction
commitments in relat ion to sugar. 97 Sugar is, therefore, an unscheduled agricultural product, for
which India must not provide any Article 9.1 export subsidies.98
76. Articles 3.1(a) and 3.2 of the SCM Agreement also prohibit India from granting or
maintaining export subsidies. Pursuant to Article 1.1. of the SCM Agreement, a "subsidy" is deemed

91 Agreement on Agriculture, Annex 3, paragraph 1; Australia's first written submission, paras. 189–
202; Australia's responses to Panel questions 26(a) (paras. 61–62), 27 (paras. 71–83), 50 (paras. 8–12).
92 Australia's domestic support calculations, Microsoft Excel workbooks, Revision 3 (Exhibit AUS-1
(Revision 3)).
93 Australia's response to Panel question 23(a), paras. 53–54.
94 Australia's domestic support calculations, Microsoft Excel workbooks, Revision 3 (Exhibit AUS-1
(Revision 3)).
95 India's first written submission, paras. 16–18, 29–30; Australia's opening statement at the first
substantive meeting, para. 8.
96 Australia's first written submission, paras. 236–252; Australia's second written submission, para. 90.
97 India's response to Panel question 38, pp. 25–26.
98 Australia's first written submission, paras. 247–251; Australia's second written submission, para. 91.
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to exist where there is a "financial contribution" by a "government or public body" that confers a
"benefit" on its recipient.99
77. India's sugar export subsidies are contrary to its oblig ations under both agreements.
Australia begins its analysis with the Agreement on Agriculture because, to the extent of any
inconsistency between the two agreements, the Agreement on Agriculture prevails. 100 India
acknowledges this hierarchy between the two Agreements.101
A. INDIA PROVIDES "DIRECT SUBSIDIES " THAT ARE "CONTINGENT ON EXPORT
PERFORMANCE" WITHIN THE MEANING OF ARTICLE 9.1(A) OF THE AGREEMENT ON
AGRICULTURE
78. Article 1(e) of the Agreement on Agriculture defines "export subsidies" as "subsidies
contingent on export performance", including the practices listed in Article 9.1. Article 9.1(a) of the
Agreement concerns direct subsidies including payments-in-kind, that are provided by governments
or their agencies to a firm, an industry, producers of an agricultural product, a cooperative or other
association of such producers, or to a marketing board, and that are contingent on export
performance.102
1. India's production subsidies, buffer stock sub sidies and its
MAEQ and DFIA schemes are Article 9.1(a) subsidies
79. India's production and buffer stock subsidies and its MAEQ and DFIA schemes are export
subsidies within the meaning of Article 9.1(a).
80. Each scheme involves a direct transfer of economic resources from the Indian government
to sugar mills for less than full consideration. Pursuant to the production and buffer stock subsidies
and the MAEQ scheme, India's Department of Food and Public Distribution makes funds available to
clear sugar mills' de bts to sugarcane farmers. Under the DFIA scheme, the government foregoes
import tax revenue that mills would otherwise owe it.
81. Sugar mills are "producers of an agricultural product". 103 However, noting the degree of
overlap between the categories of subsid y recipient in Article 9.1(a), 104 they may also qualify
individually as "firms" or collectively as an "industry". The characterization of mills, collectively, as
"a cooperative or other association of such producers" may also be appropriate as Indian sugar mills
are commonly owned and operated by cooperatives.105 The schemes leave recipient mills better off
than they would otherwise have been. Finally, all are export -contingent, linking the availability of
subsidies to the achievement of export quotas or targets, or to past export performance.106
2. India misinterprets Article 9.1
82. Australia and India agree on the elements required to satisfy the legal standard under
Article 9.1(a) and that the "subsidy" definition in Article 1.1 of the SCM Agreement is relevant to the
interpretation of the terms "subsidy" and "subsidies" as they appear in the Agreement on
Agriculture.107 However, Australia and India do not agree on what is required to demonstrate the
elements of a subsidy for the purposes of Article 9.1(a). Specifically, India bases its interpretation

99 Australia's first written submission, paras. 372–388.
100 Agreement on Agriculture, Article 21.1. See also, Australia's first written submission, paras. 212–
216; Australia's second written submission, para. 89.
101 India's first written submission, paras. 91–92.
102 Australia's first written submission, paras. 253–284; Australia's second written submission, paras.
94–95.
103 Agreement on Agriculture, Article 9.1(a).
104 Australia's first written submission, para. 275; Australia's response to Panel question 54, para. 25.
105 Australia's first written submission, para. 296.
106 Australia's second written submission, para. 96. See also, Australia's first written submission, paras.
288–365.
107 Australia's second written submission, paras. 98–99; India's responses to Panel questions 29 (p. 21),
54(a) (p. 9).
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of the legal standard applicable under Article 9.1(a) on a flawed understanding of the two elements
of the SCM Agreement's subsidy definition.108
(a) Evidence of actual funds disbursements is not required
83. India insists that because the SCM Agreement deems a subsidy to exist where "there is a
financial contribution",109 Australia must provide evidence of actual disbursements of government
funds to substantiate the existence of India's subsidies.110
84. Australia disagrees. Article 9.1(a) concerns the "provision" of subsidies. "To provide"
funds, is "to make [them] avai lable", as, for example, when a government provides the legislative
authority to make payments under a scheme or makes a relevant budgetary allocation.111
85. Further, the immediate context of Article 9.1(a) within the Agreement on Agriculture makes
clear that the Agreement contemplates a subsidy being demonstrable on an allocation of funds alone.
Specifically, Article 9.2(a)(i) provides that a Member's compliance with its scheduled export subsidy
reduction commitments may be measured based on budgetary outlays "allocated or incurred."112
86. Article 1.1(a)(1)(i) of the SCM Agreement, similarly, provides that " potential direct
transfers of [government] funds" may constitute a "financial contribution" for the purposes of a
subsidy, thereby acknowledging that a subsid y may exist in situations where actual payments are
prospective.113 In fact, the Appellate Body and previous panels have considered "conduct on the part
of the government by which money, financial resources, and/or financial claims are made available
to a r ecipient"114 sufficient to demonstrate a "direct funds transfer", and that the phrase
encompasses situations in which some payments under a measure are yet to be made.115
87. Australia does not accept either that the reference in Article 9.1(a) to "payments -in-kind"
or the fact that the challenged measures involve "grants", support India's contention that only
evidence of actual payments can demonstrate the existence of a "financial contribution" in relation
to its export subsidies.116 The textual references India relies on are simply examples that illustrate
the variety of forms a "financial contribution" may take. 117
88. India's understanding of what is required to demonstrate the existence of a financial
contribution is, in any event, moot because Australia has provided evidence of actual payments to
sugar mills under the challenged measures.118
(b) Australia has demonstrated the existence of a "benefit"
89. India also alleges that Australia has failed to conduct the market comparison necessary
to demonstrate the exi stence of a "benefit" for the purposes of the subsidy definition in the
SCM Agreement. Australia disagrees. Australia accepts that the market provides a useful benchmark
against which to test the existence of a benefit. 119 However, the market comparison exe rcise
required in this context is simple because it is readily apparent that the market for financial services

108 SCM Agreement, Articles 1.1(a) and 1.1(b).
109 SCM Agreement, Article 1.1(a)(1) (emphasis added); India's first written submission, para. 107;
India's second written submission, paras. 69, 76, 89.
110 India's first written submission, paras. 105–109; India's second written submission, paras. 67–89.
111 Australia's second written submission, paras. 101, 105; Australia's opening statement at the second
substantive meeting, para. 57.
112 Agreement on Agriculture, Article 9.2(a)(i) (emphasis added); Australia's second written submission,
para. 106.
113 Australia's second written submission, para. 107.
114 Appellate Body Report, US – Large Civil Aircraft (2nd complaint), para. 614; Australia's response to
Panel question 59, para. 77.
115 Panel Report, EC and certain member States – Large Civil Aircraft (Article 21.5 – US), para. 6.290;
Australia's response to Panel question 59, para. 77.
116 India's second written submission, paras. 72–74.
117 Australia's opening statement at the second substantive meeting, paras. 49–50, 60–61.
118 Australia's second written submission, paras. 112–113; Australia's response to Panel question 59,
para. 82.
119 Australia's opening statement at the second substantive meeting, para. 69.
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involving the provision of funds does not offer the sort of non -reciprocal gifts or grants available to
sugar mills under the challenged measures.120
3. India has not established a defence under Article 9.4 in relation
to the MAEQ scheme
90. In response to Australia's prima facie case that the MAEQ scheme is an Article 9.1(a) export
subsidy, India has argued that the scheme falls within Article 9.4 of the Agreement on Agriculture.
India has not substantiated that assertion with any evidence that the MAEQ scheme falls under either
of Articles 9.1(d) or (e) of the Agreement, which identify the types of export subsidies to which the
flexibility in Article 9.4 applies.
91. India has pointed to the MAEQ scheme's notification, which partially replicates the language
of Articles 9.1(d) a nd (e). 121 However, that language represents the extent of the scheme's
connection with the transport, freight and marketing subsidies to which Articles 9.1(d) and (e) apply.
Merely pointing to WTO -consistent language in the scheme's notification is no substitute fo r an
objective assessment of the scheme's design, operation and purpose – none of which reveals any
link to the types of costs that Articles 9.1(d) and (e) contemplate.122
92. To meet the legal standard applicable under Article 9.1(d), the subsidy in question must
be provided for the distinct purpose of covering "costs of marketing exports of agricultural products",
including "the costs of international transport and freight". Under Article 9.1(e), there must be
evidence of governmental action taken for the distinct purpose of creating advantageous conditions
for "internal transport and freight charges on export shipments" vis-à-vis domestic shipments. This
relationship between the subsidy and the purposes identified in Articles 9.1(d) and (e) respectively
must also be quantifiable, with the assistance provided reducing but not exceeding actual costs or
charges.123 India agrees that subsidies that fall within Articles 9.1(d) and (e) must not exceed the
costs incurred.124
93. Australia has adduced compelling evidence th at the MAEQ scheme does not satisfy the
legal standards applicable under Articles 9.1(d) and (e). The scheme's purposes, as indicated in its
notification, are to help sugar mills offset the cost of buying sugarcane by satisfying debts owed to
sugarcane farmers and to incentivize export by making eligibility to claim assistance conditional
upon meeting an export target.125
94. Moreover, the MAEQ scheme gives no indication of a link between assistance provided and
actual costs of the kinds identified in Articles 9.1(d) and (e). The only metric used to calculate the
subsidy's value is the number of tonnes of sugar exported. 126 India's contention that the subsidies
improve sugar mills' financial position and therefore ultimately reduce transport, freight and
marketing costs reflects an unacceptably broad interpretation of the applicable legal standards,
which require evidence of a direct relationship between relevant subsidies and costs of the kinds
identified in Articles 9.1(d) and (e).127
95. Despite asserting that it determined the value of MAEQ payments following significant
stakeholder consultation, India has not adduced any probative evidence of such consultations and,
consequently, of the relationship required by the legal standards applicable under Articles 9.1(d)
and (e).128 Australia, on the other hand, has shown that the MAEQ scheme's design fails to ensure

120 Australia's second written submission, para. 110; Australia's opening statement at the second
substantive meeting, paras. 69–72. See also, Australia's response to Panel question 53, paras. 20–22;
Australia's first written submission, para. 269.
121 India's first written submission, paras. 119–120, 122.
122 Australia's response to Panel question 43, para. 128; Australia's second written submission, paras.
128–133.
123 Australia's second written submission, paras. 120–122; Australia's response to Panel question 56(a),
para 39.
124 India's response to Panel question 81, p. 14.
125 Australia's second written submission, paras. 125, 130–133.
126 Australia's second written submission, para. 131.
127 India's opening statement at the first substantive meeting, para. 15; Australia's second written
submission, paras. 138–140.
128 India's opening statement at the first substantive meeting, para. 17; Australia's second written
submission, paras. 141–146; Australia's response to Panel question 82, paras. 104–109.
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that the assistance provided does not exceed the actual transport, freight and marketing costs that
sugar mills typically incur.129
96. Finally, Australia does not accept India's assertion that the proper characterization of
Article 9.4 is as an "autonomous right" rather than a typical "exception" or "defence", or India's
related argument that Australia bore the burden of both raising and proving the provision did n ot
apply to the MAEQ scheme in its first written submission. 130 To oblige a complainant to anticipate
any provision a respondent may raise in its defence and to explain why that provision does not apply
would place an unsustainable evidentiary burden on complainants and compromise the efficiency of
dispute settlement. 131 If a respondent asserts, in response to evidence and argument that it
maintains Article 9.1(a) export subsidies, that those subsidies in fact fall within the meaning of
Articles 9.1(d) or (e) , it is for the respondent to prove the affirmative of that assertion. 132 India's
argument is, in any case, moot, given Australia's comprehensive evidence and argument that the
scheme does not satisfy the legal standards applicable under Articles 9.1(d) and (e).133
B. INDIA PROVIDES PROHIBITED SUBSIDIES WITHIN THE MEANING OF ARTICLE 3.1(A) OF
THE SCM AGREEMENT
97. The Agreement on Agriculture does not authorize India's export subsidies, which therefore
remain subject to the disciplines of the SCM Agreement and are inconsistent India's obligations
under Articles 3.1(a) and 3.2.
1. India's production subsidies, buff er stock subsidies and its
MAEQ and DFIA schemes are Article 3.1(a) subsidies
98. A measure that satisfies the definition of a "subsidy" in Article 1.1 of the SCM Agreement
will involve a "financial contribution", by a "government or public body", that confers a "benefit" on
its recipient. Article 3.1(a) "prohibits subsidies that are conditional upon… or are dependent for their
existence on", or are "tied to" export performance.134
99. Under each of India's production and buffer stock subsidies and its MAEQ scheme, there is
a "financial contribution" in the form of a "government practice" involving the "direct transfer of
funds" within the meaning of Article 1.1(a)(1)(i) of the SCM Agreement. Each scheme involves the
transfer of funds from a government agency either to sugarcane farmers on behalf of mills or to
sugar mills directly. Under the DFIA scheme, there is a "financial contribution" within the meaning
of Article 1.1(a)(1)(ii), with a government agency foregoing revenue by waiving the customs duties
sugar mills would otherwise owe it.135 All schemes confer a "benefit" on recipient mills, leaving them
better off, with respect to debts owed, funds accrued or tax liability, than they would otherwise
be.136 All schemes are export-contingent, with the availability of financial assistance tied to export
performance.137
2. India misinterprets the legal standard applicable for
establishing the existence of an Article 1.1 subsidy
100. In response to Australia's prima facie case that India maintains export subsidies contra ry
to its obligations under Articles 3.1(a) and 3.2 of the SCM Agreement, India repeats its argument
that evidence of actual funds transfers is required to demonstrate the existence of a "financial

129 Australia's second written submission, paras. 147–169; Australia's response to Panel question 84,
para. 115.
130 India's opening statement at the second substantive meeting, paras. 77–83; Australia's responses to
Panel questions 92(a) (paras. 143–148), 92(b), (paras. 149–153, 156).
131 Australia's response to Panel question 92(b), para. 152; Panel Report, India – Export Related
Measures, para. 7.11.
132 Australia's second written submission, para. 119, citing Appellate Body Report, US – Wool Shirts and
Blouses, p. 14; Australia's response to Panel question 92(b), para. 152.
133 Australia's response to Panel question 92(b), para. 154.
134 Australia's second written submission, paras. 203–204.
135 Australia's first written submission, paras. 394–397, 405–408, 413–416, 426.
136 Australia's first written submission, paras. 398–400, 409, 417, 427–427.
137 Australia's first written submission, paras. 401–403, 410–411, 420–422, 430–431.
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contribution" for the purposes of the "subsidy" definition in Article 1.1 of the SCM Agreement. 138
India also recycles its argument that a complex market comparison is needed to establish the
"benefit" component of the Article 1.1 subsidy definition. 139 Australia disagrees, for the reasons
outlined above in relati on to India's subsidies under Article 9.1(a) of the Agreement on
Agriculture.140
3. India misinterprets Article 27 and Annex VII
101. India contends that it is exempt from the export subsidy prohibition in Article 3.1(a) of the
SCM Agreement by virtue of the flexibility Article 27.2 of the Agreement affords developing country
Members.141 Australia disagrees. Article 27.2(b) provides that the Article 3.1(a) prohibition shall not
apply to "other developing country Members" – i.e. those not referred to in Annex VI I to the
Agreement – for a period of eight years after the WTO Agreement's entry into force. On a plain
reading of the text of the provision itself, Article 27.2(b) expired on 1 January 2003.
102. Accepting "the clarity of the plain textual meaning" 142 of Article 27.2(b) is consistent with
customary rules of treaty interpretation 143 and does not render, as India argues, parts of the
SCM Agreement useless or redundant vis -à-vis some developing country Members. 144 Nor does it
undermine the mandatory language of Annex VII(b), pursuant to which listed developing countries
"shall be subject to the provisions which are applicable to other developing country Members" 145
upon their graduation from the Annex. The mandatory language in Annex VII(b) concerns the
applicability, to graduating developing country Members, of Article 27.2(b). It does not concern the
provision's content, including its temporal limit. Moreover, as the inclusion in Annex VII(b) of the
sub-clause "which are applicable to other developing country Members" makes clear, Article 27.2(b)
applies to graduates from Annex VII(b) on exactly the same terms, including with respect to its
expiry, as it does for "other developing country Members."146
103. Further, a plain reading of Article 27.2(b) does not, as India claims, frustrate a harmonious
reading of Article 27 as a whole. India contends, for example, that Article 27.4 anticipates different
eight-year export subsidy phase out periods for different categories of developing country
Member.147 Australia disagrees. Article 27.4 both cross -references Article 27.2(b) and refers twice
to "the eight-year period".148 As this use of the definite article "the" makes clear, Article 27.4 refers
to the specific eight-year period introduced in Article 27.2(b).149
104. Far from denying developing country Members equal treatment as India argues,150 a plain
reading of Article 27.2(b) is consistent with the different levels of flexibility that Article 27 and Annex
VII afford developing country Members according to their circumstances.151
105. India graduated from Annex VII(b) to the SCM Agreement in 2017. It was, thereafter,
subject to the export subsidies prohibition in Article 3.1(a). Until 2017, India benefited from an
extended period of exemption from the Agreement's export subsidies prohib ition appropriate to its
evolving income level.152

138 India's first written submission, paras. 146–147. See also, India's second written submission,
paras. 67–89.
139 India's first written submission, para. 147. See also, India's second written submission, paras. 90–
97.
140 See paragraphs 83 to 88 above.
141 India's first written submission, paras. 129–145.
142 Appellate Body Report, Peru – Agricultural Products, para. 5.94.
143 See footnote 40 above.
144 India's first written submission, para. 137.
145 SCM Agreement, Annex VII(b) (emphasis added).
146 Australia's second written submission, paras. 185–190.
147 India's first written submission, para. 141.
148 SCM Agreement, Article 27.4 (emphasis added).
149 Australia's second written submission, para. 192.
150 India's first written submission, paras. 139–140.
151 Australia's second written submission, paras. 198–199.
152 Australia's second written submission, paras. 195–201.
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4. The DFIA scheme does not fall within footnote 1
106. India's DFIA scheme is, as outlined above, an export subsidy within the meaning of
Article 9.1(a) of the Agreement on Agriculture. 153 The DFIA scheme is not authorized by the
Agreement on Agriculture. It does not, moreover, fall within the carve -out, in footnote 1 to the
SCM Agreement, from that Agreement's definition of a "subsidy". The DFIA scheme
therefore remains subject to the prohibition on export subsi dies in Articles 3.1(a) and 3.2 of the
SCM Agreement.
107. Footnote 1 to the SCM Agreement, read together with Annex I(i), provides that, a measure
will not be deemed to be a subsidy if it comprises: (i) a remission or drawback, including full or
partial exempt ion or deferral; (ii) of import charges; (iii) on imported inputs consumed in the
production of an exported product; and (iv) the remission or drawback is not in excess of those
charges levied on the inputs.154
108. To satisfy the third element of this legal standard a measure must follow a sequencing that
ensures it applies to imported inputs that are " consumed in the production of [an] exported
product".155 As the guidance in Annexes II to III to the SCM Agreement articulates, inputs so
"consumed" include, rele vantly, those "physically incorporated" 156, in the sense that they are
"physically present",157 in the exported product.158
109. Australia recalls that the DFIA scheme permits mills that exported white sugar during a 6-
month period in the 2017 –18 sugar season to import raw sugar duty free during two subsequent
seasons.159 This sequencing reverses the logic of footnote 1, read with Annex I(i), and interpreted,
as footnote 1 directs, in context with the guidance in Annexes II to III to the SCM Agreement. Raw
sugar imported from 2019 to 2021 cannot be either "physically incorporated" or "physically present"
in refined sugar exported in 2018.160
110. Additionally, the existence of a verification system to ensure that the DFIA scheme's
beneficiaries do not receive duty waiver s for more imported raw sugar than they use to produce
white sugar exports cannot guarantee that the scheme falls within footnote 1 to the SCM Agreement.
The verification system associated with the DFIA scheme, regardless of its efficacy in preventing
excess remissions, cannot alter the scheme's inconsistency with the temporal requirements of
footnote 1, read with Annex I(i), to the SCM Agreement.161
111. Australia does not, as India claims, argue that footnote 1, read with Annex I(i), is so
restrictive as to apply only when precisely the same inputs imported duty free are physically present
in an exported product. 162 Australia recognises that Annex I(i) allows " where appropriate" for
"substitution."163 This flexibility makes sense where domestic and imported inputs are commingled
in the production of products destined for domestic and export markets. However, it does not follow
that, in allowing an equivalent quantity of home market inputs to be substituted for imported inputs,
Annex I(i) to the SCM Agreement also permits the substitution of future imported inputs for
equivalent quantities of imported inputs used to produce past exports.164
112. Finally, Australia does not accept India's contention, based on its position that footnote 1
to the SCM Agreement (read with Annex I(i)) is not a typical "exception" or "defence", that Australia
bore the burden of proving no later than in its first written submission that the DFIA scheme did not

153 See paragraphs 79 to 81 above.
154 Australia's response to Panel question 58(b), para. 65; Australia's second written submission,
155 SCM Agreement, Annex I(i) (emphasis added).
156 SCM Agreement, footnote 61.
157 SCM Agreement, Annex II(II)(3).
158 Australia's response to Panel question 85, paras. 119–123.
159 See paragraph 25 above.
160 Australia's response to Panel question 85, paras. 119 and 126.
161 Australia's comments on India's response to Panel question 88, paras. 49–52.
162 India's opening statement at the second substantive meeting, para. 90; Australia's closing statement
at the second substantive meeting, para. 24.
163 SCM Agreement, Annex II(I)(2).
164 Australia's comments on India's response to Panel question 88, paras. 53–54.
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fall within footnote 1. 165 As Australia articulated with respect to the allocation of burden under
Article 9.4 of the Agreement on Agriculture, 166 the characterization of a provision other than as a
typical exception or affirmative defence does not determine which party bears the i nitial burden of
raising that provision. The proper characterization of footnote 1 and the implications of that
characterization, including for the allocation of burden of proof, is in any case moot. Australia has
addressed comprehensively the question of whether the DFIA scheme falls within footnote 1 and
India had ample opportunity to respond.167
V. INDIA HAS FAILED TO NOTIFY ITS DOMESTIC SUPPORT IN FAVOUR OF
SUGARCANE PRODUCERS AND EXPORT SUBSIDIES FOR SUGAR IN BREACH OF ITS
WTO OBLIGATIONS
113. Australia has established that India maintains domestic support for sugarcane producers
and export subsidies for sugar. India has not submitted notifications of these measures, in breach
of its obligations under the Agreement on Agriculture and the SCM Agreement, or, in the alternative,
under the GATT 1994.
A. INDIA'S NOTIFICATION OBLIGATIONS UNDER THE AGREEMENT ON AGRICULTURE, THE
SCM AGREEMENT AND THE GATT 1994
1. Agreement on Agriculture
114. Article 18 of the Agreement on Agriculture provides, in mandatory terms, that:
• progress in the implementation of commitments negotiated under the Uruguay
Round reform programme shall be reviewed by the Committee on Agriculture
(Article 18.1);
• the review process shall be undertaken on the basis of notifications submitted by
Members in relation to such matters and at such intervals as shall be determined
(Article 18.2);
• in addition to the notifications to be submitted to inform the review process
(under Article 18.2), any new domestic support measure, or modification of an
existing measure, for which exemption from reduction is claimed shall be notified
promptly by Members (Article 18.3); and
• domestic support notifications shall contain details of the relevant new or modified
measure and its conformity with criteria set out in in the Agreement on Agriculture
(Article 18.3).
115. Accordingly, India is required to submit notifications concerning its domestic support and
export subsidies to the Membership through the Committee on Agriculture. Notifications are essential
for ensuring transparency and enabling the Committee to monitor the implementation of Members'
commitments effectively.168
(a) India misinterprets Article 18 of the Agreement on Agriculture
116. India claims that Article 18 of the Agreement on Agriculture does not place any obligations
on Members, but merely grants the Committee on Agriculture the discretion to determine how the
review process is conducted.169 In making this argument, India ignores the mandatory language and
overall scheme of Article 18. Contrary to India's as sertion, the Committee's role is not to be
determined as a matter of discretion. Rather, the Committee shall review Members' progress in the
implementation of their commitments and its review shall be undertaken on the basis of notifications

165 India's opening statement at the second substantive meeting, para. 89.
166 See paragraph 96 above.
167 Australia's comments on India's response to Panel question 86(a), paras. 44–46.
168 Australia's first written submission, paras. 437–443; Australia's response to Panel question 44(b),
para. 141; Australia's second written submission, paras. 223–224.
169 India's first written submission, para. 158.
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to be submitted by Members.170 If Members had no obligation to submit notifications, the Committee
would be unable to discharge its mandatory function.
117. Further, India argues that Committee document G/AG/2, which sets out the notification
requirements and formats under Article 18,171 uses hortatory language that is suggestive in nature
and does not give rise to a binding obligation. 172 India's argument is without merit. The document
G/AG/2 is not a treaty-level instrument and does not modify Members' obligations under Article 18.
Australia's claim is under Article 18, not under G/AG/2.173
118. Australia asks the Panel to find that Article 18 imposes binding notification obligations on
Members.
2. SCM Agreement
119. Article 25 of the SCM Agreement requires India to notify the Members of subsidies falling
within Article 1.1, which are specific within the meaning of Article 2, that India grants or maintains
within its territory.174 Such notifications must be submitted not later than 30 June of each year and
must conform to Articles 25.2 to 25.6.175
120. India does not dispute that Article 25 imposes mandatory notification obligations.176
3. GATT 1994
121. India is obliged under Article XVI:1 of the GATT 1994 to notify other Members of the extent,
nature and estimated effects on trade, of any subsidy it grants or maintains, including income or
price support, which operates directly or indirectly to increase exports of any product from its
territory.177
122. India does not dispute that Article XVI:1 imposes mandatory notification obligations.178
B. INDIA HAS BREACHED ITS NOTIFICATION OBLIGATIONS BY FAILING TO NOTIFY ITS
DOMESTIC SUPPORT IN FAVOUR OF SUGARCANE PRODUCERS AND ITS EXPORT SUBSIDIES
FOR SUGAR
123. India does not dispute that it last notified its domestic support to sugarcane in its 1995 –
96 notification to the Committ ee on Agriculture and that its most recent notification of its export
subsidies for sugar was in 2009–10, which covered the marketing years 2004–05 to 2009–10. Thus,
India has not met its legal obligations under the Agreement on Agriculture and the SCM Agreement
to notify the Membership of its domestic support for sugarcane producers and its export subsidies
for sugar.179
124. In the alternative, India is in breach of its obligation pursuant to Article XVI:1 of the
GATT 1994 to notify Members of India's subsidies that operate directly or indirectly to increase its
sugar exports.180

170 Agreement on Agriculture, Articles 18.1 and 18.2.
171 G/AG/2, 30 June 1995, p. 24.
172 India's first written submission, para. 158.
173 Australia's response to Panel question 44(b), para. 140; Australia's second written submission,
paras. 225–229.
174 SCM Agreement, Article 25.2; Australia's first written submission, paras. 444–446.
175 SCM Agreement, Article 25.1.
176 India's first written submission, para. 157.
177 Australia's first written submission, paras. 447–448.
178 India's first written submission, para. 157.
179 Australia's first written submission, para. 450–458.
180 Australia's first written submission, paras. 459–466.
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VI. CONCLUSION
125. For the foregoing reasons, Australia submits that:
• Through its market price support and other non-exempt domestic support, India
maintains domestic support for sugarcane producers that exceeds the de minimis
level of 10 per cent of the total value of production of sugarcane contrary to
India's obligation under Article 7.2(b) of the Agreement on Agriculture.
• India's production and buffer stock subsidies operating in conjunction with the
MIEQ orders, and its MAEQ and DFIA schemes constitute:
– export subsidies within the meaning of Article 9.1(a) of the Agreeme nt
on Agriculture, and are therefore inconsistent with India's obligations
under Articles 3.3 and 8 of the Agreement on Agriculture, or, in the
alternative Articles 8 and 10.1; and
– prohibited export subsidies that are inconsistent with India's obligations
under Articles 3.1(a) and 3.2 of the SCM Agreement.
• By failing to notify its annual domestic support for sugarcane and sugar
subsequent to 1995–96 or to submit an export subsidy notification since 2009 –
10, India has acted inconsistently with its obligations under Articles 18.2 and 18.3
of the Agreement on Agriculture and Article 25 of the SCM Agreement, or, in the
alternative, Article XVI:1 of the GATT 1994.
126. Australia respectfully requests the Panel to find accordingly.
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ANNEX A Summary of Australia's calculations of India's AMS for sugarcane in the sugar seasons 2014–15 to 2018–19
Option 1 Option 2

Notes:
1. For calculations, refer to Australia's domestic support calculations, Microsoft Excel workbooks, Revision 3 (Exhibit AUS-1 (Revision 3)).
Unit 2014-15 2015-16 2016-17 2017-18 2018-19
Value of production Million Rs. 784,330.00 746,600.00 724,410.00 989,670.00 1,055,920.00
MPS using
AAP(FRP plus average
premium) Million Rs. 791,939.81 815,274.15 703,842.00 1,006,325.89 1,075,845.33
—as a percentage of
production value Per cent 100.97% 109.20% 97.16% 101.68% 101.89%
MPS using
AAP(FRP or SAP)
Million Rs. 903,751.21 880,418.37 815,045.23 1,072,684.68 1,110,085.41
—as a percentage of
production value Per cent 115.23% 117.92% 112.51% 108.39% 105.13%
—difference between
MPS using AAP(FRP plus
average premium) and
AAP(FRP or SAP) Per cent 14.26% 8.73% 15.35% 6.71% 3.24%
Additional non-exempt
domestic support
—Andhra Pradesh
(Annex B-01) Million Rs. 66.00 66.00
—Tamil Nadu
(Annex B-02) Million Rs. 1364.30 980.30
—Karnataka
(Annex B-03) Million Rs. 0.10
Total additional
non-exempt Million Rs. 66.00 66.00 0.00 1364.40 980.30
AMS using
AAP(FRP+SAP) and
other non-exempt domestic
support Million Rs. 903,817.21 880,484.37 815,045.23 1,074,049.08 1,111,065.71
—as a percentage of
production value Per cent 115.23% 117.93% 112.51% 108.53% 105.22%
—difference between AMS
including other non-exempt
domestic support and
MPS using AAP(FRP+SAP) Per cent 0.01% 0.01% 0.00% 0.14% 0.09%
Unit 2014-15 2015-16 2016-17 2017-18 2018-19
Value of production Million Rs. 965,290.00 958,640.00 946,980.00 1,173,510.00 1,230,490.00
MPS using
AAP(FRP plus average
premium) Million Rs. 791,939.81 815,274.15 703,842.00 1,006,325.89 1,075,845.33
—as a percentage of
production value Per cent 82.04% 85.04% 74.32% 85.75% 87.43%
MPS using
AAP(FRP or SAP)
Million Rs. 903,751.21 880,418.37 815,045.23 1,072,684.68 1,110,085.41
—as a percentage of
production value Per cent 93.62% 91.84% 86.07% 91.41% 90.21%
—difference between
MPS using AAP(FRP plus
average premium) and
AAP(FRP or SAP) Per cent 11.58% 6.80% 11.74% 5.65% 2.78%
Additional non-exempt
domestic support
—Andhra Pradesh
(Annex B-01) Million Rs. 66.00 66.00
—Tamil Nadu
(Annex B-02) Million Rs. 1364.30 980.30
—Karnataka
(Annex B-03) Million Rs. 0.10
Total additional
non-exempt Million Rs. 66.00 66.00 0.00 1364.40 980.30
AMS using
AAP(FRP+SAP) and
other non-exempt domestic
support Million Rs. 903,817.21 880,484.37 815,045.23 1,074,049.08 1,111,065.71
—as a percentage of
production value Per cent 93.63% 91.85% 86.07% 91.52% 90.29%
—difference between AMS
including other non-exempt
domestic support and
MPS using AAP(FRP+SAP) Per cent 0.01% 0.01% 0.00% 0.12% 0.08%
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2. Australia considers there are two potential options for India's total value of production, both of which are reasonable. Opti on 1 uses as the value
of production the figures in Row 4.1 "Sugarcane" of India's Ministry of Statistics and Programme Implementation, National Accounts Statistics 2020,
Statement 8.1.2 Crop -wise value of output ( Exhibit JE-147). Option 2 uses as the value of production the sum of the figures in Rows 4.1
"Sugarcane" and 4.2 "gur" of Exhibit JE-147. See Australia's response to Panel question 60, paras. 1–14.
3. "MPS" is market price support; "Rs" is Indian Rupees.
4. References to Annexes are to Annexes in Australia's first written submission.
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ANNEX B-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF GUATEMALA
I. INTRODUCTION
1. Guatemala's legal claims in this dispute concern two main aspects: (i) India's domestic support
for sugarcane producers, which is provided in amounts greatly exceeding India's permitted de
minimis level of 10%; and (ii) India's export subsidies for sugar, which India maintains despite the
fact that it has no export subsidy entitlements inscribed in its World Trade Organization ("WTO")
Schedule of Concessions.
2. At the heart of India's regime is the Market Price Support ("MPS") provided by the Indian
Government to sugarcane producers through the federal -level Fair and Remunerative Price ("FRP")
and, in the case of certain Indian States, the State Advised Price ("SAP"). The FRP and SAP are
government-mandated prices for sugarcane purchases. Additionally, Indi a imposes stockholding
requirements for sugar, subsidized sugar buffer stocks, as well as subsidies for sugar mills that
comply with export quotas.
3. India's system of administered prices has produced dire consequences for sugar mills, which
must purchase sugarcane at the high prices mandated by the Government. Indian authorities have
fixed the FRP and SAP at such high levels that sugar mills can no longer afford to pay in full this price
to sugarcane growers.1 This has caused an accumulation of overdue payments (or arrears) that sugar
mills owe to sugarcane growers. The Indian Sugar Mills Association ("ISMA") calculates that on 31
March 2019 sugarcane arrears reached "historic levels" of Indian Rupees ("INR") 30'000 crore,
approximately 4.2 billion US Dollars ("USD").2 Sugarcane arrears jeopardize the livelihood of India's
50 million sugarcane farmers, who struggle to make a living without payment for their produce. 3
India's measures, thus, could achieve the exact opposite result than the alleged inte ntion of
addressing the "livelihood concerns of India's largely low-income, resource-poor sugarcane farmers"
as argued by India in its first written submission.4
4. India's sugarcane and sugar regime functions as a vicious circle, in which one trade-distorting
policy engenders problems that must be addressed through additional trade -distorting policies.
Needless to say, this regime is financially unsustainable in the long run for the Indian Government
and other sugar producing and exporting countries like Guatemala.5 Guatemala is part of the WTO
group of "small and vulnerable economies". This reflects Guatemala's status as a developing country
with an economy that relies on just a few productive sectors. The sugar industry is one of those
sectors. In addition, the sugar sector in Guatemala creates over 63'000 direct jobs and over 314'000
indirect jobs.6 Hence, the sugar industry is of the utmost importance for Guatemala. While Guatemala
understands the importance of supporting low -income farmers, any such support measures must
comply with WTO obligations. 7 For the reasons set out below, Guatemala does not consider that
India's domestic support for sugarcane and export subsidies for sugar comply with India's obligations
under the Agreement on Agriculture and the SCM Agreement.

1 Financial Express, "Centre not appreciating mills 'huge financial crisis'", 20 April 2018, available at
https://www.financialexpress.com/market/commodities/centre-not-appreciating-mills-huge-financial-
crisis/1139014/, last accessed on 15.11.2020, Exhibit GTM-15.
2 See India Sugar Mills Association, Presentation during the brainstorming session under the
Chairmanship of Joint Secretary (sugar), 11 June 2019, Exhibit JE-12, p. 10.
3 Frontline, "Bitter glut", available at:
https://frontline.thehindu.com/thenation/agriculture/article24321068.ece, last accessed on 15.11.2020, Exhibit
GTM-43. The Hindu, "Sugarcane farmers demand settlement of arrears", 27 June 2018,
https://www.thehindu.com/news/national/karnataka/sugarcane-farmers-demand-settlement-of-
arrears/article24265636.ece, last accessed on 15.11.2020, Exhibit GTM-44.
4 India's first written submission, para. 2.
5 The Wall Street Journal 2019, Exhibit GTM-2.
6 ASAZGUA, Exhibit GTM-10, p. 3.
7 Guatemala's opening statement at the first substantive meeting, paras. 2.10 – 2.11.
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II. ROADMAP TO THIS EXECUTIVE SUMMARY
5. Guatemala's integrated executive summary is structured as follows:
▪ Section III addresses India's request for a preliminary ruling.
▪ Section IV explains that India's lack of cooperation in these proceedings does not
affect the Panel's ability to make an objective assessment under Article 11 of the
DSU.
▪ Section IV addresses Guatemala's legal claim that India's domestic support measures
are inconsistent with India's obligations under Article 7.2(b) of the Agreement on
Agriculture.
▪ Section V contains Guatemala's legal claim that India's export subsidies are
inconsistent with Articles 3.3, 8, and 9.1 of the Agreement on Agriculture, and
consequently, also with Article 3.1(a) of the SCM Agreement.
▪ Finally, in Section VI, Guatemala presents its specific requests for legal findings and
recommendations from the Panel.
III. INDIA'S REQUEST FOR A PRELIMINARY RULING
6. In its first written submission, India requested the Panel to find that certain measures are
outside of the Panel's terms of reference either because they allegedly expired prior to the
establishment of the Panel, or because they were allegedly enacted after the establishment of the
Panel.8
7. Guatemala argued that India's request for a preliminary ruling was without legal basis. With
respect to the measures that allegedly expired prior to the Panel establishment, Guatemala noted
that India erroneously eq uated "measures" with "legal instruments", which are two different legal
concepts. A measure is an act or omission of a WTO Member, the existence of which is demonstrated
through legal instruments or other evidence. 9 Consequently, the expiry of a legal in strument is not
the same as the expiry of a measure. 10 This is particularly important with respect to legal claims
involving domestic support under the Agreement on Agriculture, where complainants must
necessarily rely on historical data. 11 Moreover, even if a measure had expired before the
establishment of the Panel, this "is not dispositive of the question whether the panel can address
claims in respect of that measure".12 Nonetheless, none of the measures at issue had expired.13
8. With respect to the m easure that were allegedly enacted after the Panel establishment, the
MAEQ Scheme 2019, Guatemala argued that this measure is properly within the Panel's terms of
reference because the Panel's terms of reference, as expressed in Guatemala's Panel request, are
broad enough to include the MAEQ Scheme 2019; it is of the same essence as the export subsidies
identified in Guatemala's Panel request; and the inclusion of the MAEQ Scheme 2019 in the Panel's
terms of reference is necessary to secure a positive solution to the dispute.14
9. In its preliminary rulings dated 9 November 2020 and 14 December 2020, the Panel rejected
India's request and found that the relevant measures were within the Panel's terms of reference.
IV. INDIA'S LACK OF COOPERATION IN THESE PROCEEDINGS DOES NOT AFFECT THE
PANEL'S ABILITY TO MAKE AN OBJECTIVE ASSESSMENT UNDER ARTICLE 11 OF THE
DSU
10. India's lack of cooperation has permeated every single stage of these proceedings. For
example, when the Panel or the complainants have posed direct questions to India on matters related

8 India's first written submission, paras. 41-46.
9 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 81. See Guatemala's
comments on India's request for a preliminary ruling, para. 10.
10 Guatemala's comments on India's response regarding India's preliminary ruling request, para. 5.
11 Panel Report, China – Agricultural Producers, para. 1.3.
12 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 –
US), para. 268 referring to Appellate Body Report, US – Upland Cotton, paras. 269-272.
13 Guatemala's comments on India's response regarding India's preliminary ruling request, para. 5.
14 Ibid.
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to the operation and sources of the FRP, SAP, and other measures providing domestic support, India
has deliberately decided not to answer the specific questions 15, answered vaguely16, or answered
late17.
11. In India's view, its conduct is justified because the burden to make a prima facie case under
the Agreement on Agriculture lies on the complainants, and thus, the complainants are "best placed
to explain the cal culations they have sought to adopt". 18 However, the fact that the complainants
bear the burden of making a prima facie case does not liberate the respondent from its obligation to
assist the Panel in discharging its duty under Article 11 of the DSU to make an objective assessment
of the matter before it, including an objective assessment of the facts. In the light of Article 3.10 of
the DSU, "[c]ollaboration from parties to a dispute is essential for a panel to be able to discharge its
function of making 'an objective assessment of the matter before it'".19
12. India also argues that, because of confidentiality concerns, it cannot share information
expressly requested by the Panel with respect to estimated costs of marketing and transportation in
the context of sugar exports.20 Guatemala notes that confidentiality concerns cannot be invoked as
valid grounds for withholding information that is expressly requested by the Panel. Paragraph 2.3 of
the Working Procedures offers the possibility of adopting additional procedures for the treatment and
handing of confidential information at the request of any Party. India chose not to avail itself of these
possible procedures. India's choice, however, cannot be invoked by India as a justification for not
providing the information requested by the Panel.21
13. In any event, India's lack of cooperation and collaboration does not affect the Panel's ability
to make an objective assessment of the legal and factual issues before it; nor has this lack of
cooperation in any way affected the ability of the complainants to make a prima facie case of violation
under the Agreement on Agriculture and the SCM Agreement. As a matter of fact, the complainants
have provided significant argument and evidence, including over 170 joint exh ibits, individual
exhibits22, and detailed calculations 23 to make a prima facie case of violation under the said
agreements.
V. INDIA'S DOMESTIC SUPPORT FOR SUGARCANE FARMERS IS INCONSISTENT WITH
ARTICLE 7.2(B) OF THE AGREEMENT ON AGRICULTURE
A. Introduction
14. Pursuant to paragraph 1 of Annex 3 of the Agreement on Agriculture, domestic support can be
provided in the form of Market Price Support ("MPS"), non -exempt direct payments, or any other
subsidy not exempted from the reduction commitment ("other non-exempt policies"). India provides
domestic support in the form of MPS, through the FRP and SAP, and in the form of non-exempt direct
payments and other non-exempt policies, through other federal and state-level measures.24
15. In accordance wit h Article 7.2(b) of the Agreement on Agriculture, domestic support by
developing countries that did not inscribe reduction commitments in their Schedules, such as India25,
may not exceed 10% of the value of production of the relevant basic agricultural pro duct (in this
case, sugarcane). India's domestic support from sugar season 2014/2015 to sugar season
2018/2019 has reached levels that greatly exceed these limits, ranging from 86% to 94% 26, or
alternatively, from 105% to 118% 27, depending on the figures used for the calculation of total

15 See e.g. India's answer to Panel's questions 6(a) and (b), 7, 45, 64, 66, 70(c), 71(a)-(d) and 72.
16 See e.g. India's answers to Panel's questions 5(a) and (b), 62, 63(b), 70(a), 74(b) and (c).
17 India responded to Guatemala's questions after the second substantive on 29 April 2021, seven days
after the date stipulated by the Panel. See Guatemala's letter dated 28 April 2021 on India's lack of response to
Guatemala's questions.
18 See e.g. India's response to Panel's question 72.
19 Panel Report, Argentina – Import Measures, para. 6.31.
20 See e.g. India's answer to Panel's question 82(c).
21 Guatemala's closing statement at the second substantive meeting, para. 3.6.
22 For example, Guatemala has provided over 50 exhibits. Australia has provided over 100 exhibits.
23 See Exhibit GTM-45 (Revision 12 May 2021).
24 Guatemala's first written submission, paras. 73 – 99.
25 India's response to Panel's question 46.
26 See Exhibit JE – 174.
27 Guatemala's updated calculations of India's AMS, Exhibit GTM-45, Revision 12 May 2021.
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value of sugarcane production. 28 India, therefore, acts inconsistently with its obligations under
Article 7.2(b) of the Agreement on Agriculture.
16. In the following sub-sections, Guatemala describes the measures at issue, explains that these
measures provide domestic support in excess of the de minimis limits, and, finally, responds to
India's arguments.
B. The FRP, the SAP and India's other domestic support measures
17. With respect to MPS, since 2009, India has imposed administered prices for sugarcane
purchases, which, at the federal level, are called the FRP, and at the State level, the SAP.29 The FRP
and SAPs are fixed by the Indian Government and must be paid by sugar mills. 30 If sugarcane is
purchased below the administered prices, India imposes penalties that may include imprisonment.31
18. The FRP is composed of two elements:32
• A base price in INR per quintal33 for sugarcane with a recovery rate equivalent or below an
established basic recovery rate. The recovery rate refers to the amount of sugar that can be
extracted from sugarcane.34 Sugarcane with a recovery rate equivalent or below the basic
recovery rate receives the base price of the FRP.
• A premium that increases in proportion to the recovery rate. Sugarcane with a recovery rate
above the basic recovery rate would receive the FRP base price plus a premium. As the
recovery rate is normally an indication of the quality of the sugarcane, this system seeks to
encourage production of higher quality sugarcane.
19. The FRP operates at the level of the Central Government and has a nationwide coverage.
Furthermore, six Indian States also impose their own administered prices for sugarcane in the form
of SAP. These six States are Bihar, Haryana, Punjab, Tamil Nadu, Uttarakhand, and Uttar Pradesh.
These six States collectively account for 60% of total sugar production in India.35 All of these States,
with the exception of Tamil Nadu36, apply a State base price that can vary depending on the variety
of sugarcane. Sugarcane of early and mid-varieties receives a higher SAP than sugarcane of normal
varieties or unrecommended varieties.37 Assured of receiving the high FRP and, in certain states, the
even higher SAPs, farmers are encouraged to produce sugarcane instead of other crops.38
20. In addition to the FRP and the SAP, the Central and State Governments provide other measures
to assist sugar mills and sugarcane producers. These measures include direct payments, soft loans,
and revenue foregone, among other things.39 For example, Andhra Pradesh foregoes fiscal revenue
to the benefit of sugarcane growers. In essence, payments of purchase tax in the amount of INR
6/quintal normally made by sugar mills to the State of Andhra Pradesh are re-directed to sugarcane
producers so that they can receive income additional to the FRP for their sugarcane. 40 Similarly,
Tamil Nadu provides "incentive payments" to support the transition fro m the SAP to the Revenue

28 See Guatemala's answer to Panel's question 60, and Guatemala's comments on India's answer to
Panel's question 60.
29 Guatemala's first written submission, paras. 55, 72.
30 Guatemala's first written submission, paras. 37-38.
31 Guatemala's first written submission, paras. 50, 72.
32 Guatemala's first written submission, para. 40.
33 1 quintal is equivalent to 100 kg.
34 A 9.5% recovery rate means that from 100 kg of sugarcane crushed, 9.5 kg of sugar can be produced.
35 Guatemala's first written submission, paras. 51–72. The production of sugarcane in sugar season
2017/18 in Bihar, Haryana, Punjab, Tamil Nadu, Uttarakhand, and Uttar Pradesh was 218.815 million MT of
sugarcane. India's total production of sugarcane in sugar season 2017/18 was 355.098 million MT. See Annex
Table 1.1 of CACP, Price Policy for Sugarcane (2019-20 sugar season), August 2018, Exhibit JE-53, pp. 53-54.
36 Tamil Nadu applies the SAP based on recovery rates in a manner similar to the FRP. For example, the
SAP in Tamil Nadu for the sugar season 2016-2017 was "Rs.275 per quintal linked to 9.5% with increase of
Rs.2.42 for every 0.1%-point increase in recovery above 9.5 per cent". See CACP, Price Policy for Sugarcane
(2018-19 sugar season), August 2017, Exhibit JE-52, p. 57.
37 Guatemala's first written submission, paras. 53-54.
38 Guatemala's second written submission, para. 4.
39 Guatemala's first written submission, paras. 72-99.
40 CACP, Price Policy for Sugarcane (2018-19 sugar season), August 2017, Exhibit JE-52, Annex Table
2.2, column 2014-15, row Andhra Pradesh.
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Sharing Formula ("RSF")41. These payments are "over and above the Fair and Remunerative Price"42.
C. India's FRP and SAP provide MPS in excess of the 10% de minimis limit
21. In accordance with paragraph 8 of Annex 3, MPS is measured by calculating the gap between
the Fixed External Reference Price ("FERP") and the Applied Administered Price ("AAP"), which is
then multiplied by the quantity of eligible production ("QEP"). 43 This formula, known as the "price
gap" formula or methodology, can be illustrated as follows:

22. The price gap formula with the three elements just discussed is used to state the level of MPS
in absolute terms. The resulting MPS in absolute terms must be added to other forms of domestic
support, where applicable, so that the total amount of domestic support can be divided by the total
value of production to state the level of domestic support as a percentage of the total value of
production.
Domestic support in
relation to total value
of production
= Domestic support
in absolute terms
÷ Total
national
production
* Producer
price
 total value of production
 fourth element
23. For the calculation of MPS, Guatemala determined the values of the AAP, the FERP, the QEP
and the total value of production based on India's official data and documents.44
24. With respect to the AAP, Guatemala relied on the FRP and the SAP. For the States that did not
apply SAPs, Guatemala calculated the AAP on the basis of the FRP (base level FRP plus any possible
premium that resulted when the recovery rate in a State exceeded the recovery rate for the base
level).45 For the six States that did apply SAPs, Guatemala calculated the AAP on the basis of the
SAP for the mid-point variety, with the exception of Tamil Nadu, which operates an SAP on the basis
of a base rate and premiums in accordance with recovery rates (similar to the FRP).46

41 The use of SAPs has been criticised by Indian experts and federal specialised agencies. For example,
Dr. Rangarajan's Report (Exhibit GTM-31, para. 5, pp. 7-8) and the CACP reports (see e.g. CACP, Price Policy
for Sugarcane 2019-20 sugar season, August 2018, Exhibit JE-53, p. 4) have advised Indian States to eliminate
the SAP and replace it with a RSF. The RSF is a way of determining the remuneration payable to sugarcane
producers based not on a price fixed for sugarcane, but rather on a distribution between sugarcane producers
and sugar mills of the revenue generated by sugar mills from sales of sugar and/or other products made from
sugarcane.
42 Paragraph (g)(ii) of Statement of Objects and Reasons, paragraph (i)(a) of Amendment of section 2,
paragraph (f) of Amendment of section 4 of the Karnataka Act No. 28 of 2014, Exhibit GTM-28.
43 The AAP is "the price set by the government at which specified entities will purchase certain basic
agricultural products" (see Panel Report, China – Agricultural Producers, para. 7.177). The quantity of
production eligible refers to "the amount of production of a product which is fit, or able to benefit from the price
support provided through the AAP" (see Panel Report, China – Agricultural Producers, para. 7.283). Put
differently, quantity of production eligible is the amount of production that is eligible to be purchased at the
AAP, rather than the amount of production that was actually purchased at the AAP (see Appellate Body Report,
Korea – Various Measures on Beef, para. 120). The FERP is fixed and stated in each Member's Supporting
Table. Pursuant to paragraph 9 of Annex 3 of the Agreement in Agriculture, it "shall be based on the years 1986
to 1988 […]" and "may be adjusted for quality differences as necessary". Nothing in the Agreement on
Agriculture, however, allows the FERP to be adjusted for other factors.
44 See Guatemala's updated calculations of India's AMS, Exhibit GTM-45, Revision 12 May 2021.
45 Guatemala's first written submission, para. 143. See Exhibit GTM-45, Revision 12 May 2021, "MPS for
sugarcane in absolute terms - 2014/15 to 2018/19", Tables 9.1 - 9.5.
46 Guatemala's first written submission, para. 143. See Exhibit GTM-45, Revision 12 May 2021, "MPS for
sugarcane in absolute terms - 2014/15 to 2018/19", Tables 9.1 - 9.5. Note that, for Tamil Nadu, Guatemala
calculated the AAP on the basis of the base SAP rate, without premiums, as the average recovery rate of
MPS in
absolute
terms
= AAP - FERP * QEP
 first element
first element
 second element
second element
 third element
third element
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25. With respect to the FERP, Guatemala relied on the figures provided in India's Supporting
Table47, i.e. INR 156.16/mt based on a recovery rate of 8.5%, which, in accordance with paragraph
9 of Annex 3, were adjusted for quality differences in light of the actual recovery rates, which in
some States are higher than 8.5%.48
26. In relation to the QEP, in the absence of any legal limitation on the QEP, the entire production
of sugarcane in India was considered as eligible to receive the AAP for purposes of calculating India's
MPS for sugarcane under paragraph 8 of Annex 3 of the Agreement on Agriculture.49
27. Finally, with respect to the total value of sugarcane production, Guatemala relied on the figures
provided in MOSPI's National Account Statistics (Exhibit JE-147). This document can be read in two
different ways. India has chosen not to explain how its own official document should be read. In any
event, on the basis of the evidence before the Panel, in particular, MOSPI's National Account Statistics
(Exhibit JE-147); and "National Accounts Statistics Sources and Methods 2007" (Exhibit JE -168), a
document explaining the sources of the data and the methods used by MOSPI in preparing the
statistics submitted in Exhibit JE -147, the Panel can make an objective assessment of the figures
that should be used for the calculation of India's total value of production.
28. As explained in Guatemala's response to Panel's question 60, there are two options for
calculating the total value of sugarcane production. MOSPI's National Account Statistics contains
entry 4, titled "Sugars", which in turn is subdivided into three s ub-entries, "4.1 Sugarcane", "4.2
gur", and "4.3 others". The first option includes only sub-entry 4.1 of MOSPI's data and is based on
Guatemala's original reading of MOSPI's statistics based on the ordinary meaning of "Sugarcane" in
sub-entry 4.1. The second option includes sub-entries 4.1 and 4.2 ("Sugacane" and "gur") and is
based on the additional clarifications provided by "National Accounts Statistics Sources and Methods
2007" (Exhibit JE -168). This document clarified that the actual sales of sugarcan e include both
"Sugarcane" and "gur" sales.50 Guatemala considers that either option is valid for the calculation of
India's total value of sugarcane production. However, on the basis of the clarifications provided by
Exhibit JE-168, Guatemala has a prefer ence for Option 2 (calculating the total value of sugarcane
production on the basis of "Sugarcane" and "gur"). Moreover, Option 2 also happens to be more
favourable to India. As can be seen in Guatemala's revised calculations in Exhibit GTM-45 (Revision
12 May 2021), Option 2 results in lower AMS margins. In any event, Guatemala would nonetheless
not object if the Panel were to rely only on heading 4.1 ("Sugarcane"), as originally envisaged in
Option 1. Guatemala, therefore, has included both options in its revised calculations in Exhibit GTM-
45 (Revision 12 May 2021).
29. In accordance with Guatemala's calculations, India's MPS provided through the FRP and the
SAP, results in AMS levels ranging from 86% to 94%51 (Option 2), or alternatively, from 105% to
118%52 (Option 1), depending on the figures used for the calculation of total value of sugarcane
production53. Under either option, India acts inconsistently with its obligations under Article 7.2(b)
of the Agreement on Agriculture.
D. India's other domest ic support measures further exacerbate India's breach of its
obligation not to exceed the 10% de minimis limit
30. In principle, pursuant to Article 7.2(a) of the Agreement on Agriculture, every domestic support
measure should be included in the calculatio n of a Member's Current Total AMS, except for, inter
alia, measures that are exempted from reduction "by reason of any other provisions of this
Agreement", including Annex 2, Articles 6.2 and 6.5, and paragraph 8 of Annex 3. The second

sugarcane in Tamil Nadu was below 9.5% in each of the relevant sugar seasons. Note also that, Guatemala did
not provide calculations of the AAP on the basis of the FRP for States providing SAPs because, in Guatemala's
view, these calculations do not accurately reflect the applicable AAPs in the States providing SAPs. In any
event, if the Panel were to consider that it is not necessary to take into account the SAPs in the calculation of
India's AMS, Guatemala incorporates by reference Australia and Brazil's calculations of India's AMS on the basis
of the FRP alone, without SAPs. See revised versions of AUS-1 and BRA-1.
47 India's Supporting Table, G/AG/AGST/IND, p. 29.
48 See Guatemala's updated calculations of India's AMS, Exhibit GTM-45, Revision 12 May 2021.
49 See Guatemala's first written submission, paras. 148-153.
50 See Guatemala's answer to Panel's question 60.
51 See Exhibit JE–174.
52 Guatemala's updated calculations of India's AMS, Exhibit GTM-45, Revision 12 May 2021.
53 See Guatemala's answer to Panel's question 60, and Guatemala's comments on India's answer to
Panel's question 60.
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sentence of paragrap h 8 of Annex 3 of the Agreement on Agriculture states that "[b]udgetary
payments made to maintain th[e] gap [between the AAP and the FERP] such as buying-in or storage
costs shall not be included in the AMS". Thus, when incorporating into the AMS calculati on the
domestic support resulting from a MPS system (calculated based on the difference between the AAP
and FERP), one must exclude budgetary payments made to "maintain th[e] gap [between the AAP
and the FERP]", which, in principle, would have qualified as domestic support measures that should
have been added to AMS.
31. In its first written submission, Guatemala identified multiple budgetary payments made by
India to assist sugar mills in paying sugarcane producers the AAP for the sugarcane purchased. These
budgetary payments were either expressly described in Guatemala's first written submission, 54 or
incorporated by reference in Guatemala's first written submission.55
32. Guatemala considers that – with the exception of two state-level measures (Andhra Pradesh's
purchase tax exemption and Tamil Nadu's incentive payments) included by Guatemala in the
calculation of India's AMS 56 – these budgetary payments qualify as budgetary payments made to
maintain the gap within the meaning of paragraph 8 of Annex 3 of the Agreement on Agriculture. 57
Therefore, unless India states or the Panel finds otherwise, Guatemala submits that these budgetary
payments should not be included in India's AMS calculation.
33. With respect to the two state-level measures that, in principle, should be included in the AMS
calculation because they are not applied to maintain the gap between the FERP and India's AAP58,
Guatemala understands that the amount of domestic support resulting from them is marginal in
comparison to the domestic support provided through India's MPS. Hence, should the Panel consider
that, in order to resolve the dispute, it would be suffic ient to include in India's AMS calculation only
the domestic support resulting from India's MPS, Guatemala would not object to excluding these two

54 Bihar's direct payments (Guatemala's first written submission, para. 87); Central Government Soft
Loans Scheme for sugar seasons 2014-15 and 2018-19 (Guatemala's first written submission, para. 89-92);
Andhra Pradesh's soft loans (Guatemala's first written submission, para. 93); Bihar's soft loans (Guatemala's
first written submission, para. 94-95); Uttar Pradesh's loans for payment of sugarcane arrears for sugar season
2018-19 (Guatemala's first written submission, para. 96); Karnataka's transitional payments (Guatemala's first
written submission, paras. 170-175); Tamil Nadu's transitional payments (Guatemala's first written submission,
paras. 176-179); and Andhra Pradesh's purchase tax exemption (Guatemala's first written submission, paras.
180-184).
55 Bihar's purchase tax exemption (Australia's first written submission, Annex E-02, para. 508); Gujarat
soft loan Scheme 1 (Australia's first written submission, Annex E-03, para. 510); Gujarat soft loan Scheme 4
(Australia's first written submission, Annex E-03, para. 511); Haryana's financial assistance to clear sugarcane
arrears of sugar year 2018 (Australia's first written submission, Annex E-04); Haryana's soft loans or loan relief
to clear cane dues of sugar year 2018 (Australia's first written submission, Annex E-04); Maharashtra's
purchase tax exemption (Australia's first written submission, Annex E-06); Punjab assistance to sugar mills to
pay sugarcane arrears for sugar season 2017-18 (Australia's first written submission, Annex E-07); Punjab's
payment of SAP for sugar season 2018-19 (Australia's first written submission, Annex E-07); Tamil Nadu's
loans to cooperative sugar mills (Australia's first written submission, Annex E-08, para. 517); Telangana's
purchase tax exemption (Australia's first written submission, Annex E-09); Uttar Pradesh's purchase tax
exemption (Australia's first written submission, Annex E-10, para. 520); Uttar Pradesh's guarantee and
guarantee fee waiver (Australia's first written submission, Annex E-10, para. 521); Uttar Pradesh's loans for
payment of sugarcane arrears for sugar season 2016-17 (Australia's first written submission, Annex E-10, para.
522); Uttar Pradesh's loans for payment of sugarcane arrears issued in 2018 (Australia's first written
submission, Annex E-10, para. 523); and Uttar Pradesh's payments of INR 450 per MT against purchase of
sugarcane by mills for sugar season 2017-18 (Australia's first written submission, Annex E-10, para. 524).
56 Originally, Guatemala included three state-level measures in the calculation of India's AMS. Based on
the available evidence, i.e. Karnataka's Budget Estimates for the financial year 2020-21 (Exhibit JE-173), as
well as India's response to Guatemala's question 3, Guatemala decided to withdraw from India's domestic
support calculations the amounts budgeted under the "Payment of Incentive Price for Sugar Cane through
Sugar Factories" scheme, see Exhibit GTM-45 (Revision 12 May 2021). Guatemala notes that the withdrawal of
these amounts (0.1 INR million) from the calculation of India's domestic support has negligible effects in terms
of India's AMS levels. Indeed, after withdrawing these amounts from Guatemala's calculations, the AMS levels
calculated by Guatemala continue to be aligned with the AMS levels calculated by the other complainants that
did not withdrawn the amounts budgeted under this scheme.
57 As noted in Guatemala's answer to Panel's question 21, it is understood that these budgetary
payments could become relevant to India's AMS calculations in a future scenario, for example as part of India's
implementing actions in this dispute if India were to eliminate its system of AAP but keep this type of budgetary
payments. If that were to occur, these budgetary payments would no longer be maintaining a gap created by
an AAP and thus, like any other domestic support measures, they would have to be included in the AMS. In that
case, India would need to ensure that all forms of domestic support, regardless of whether they are MPS or
other policies, are kept within de minimis levels.
58 Guatemala's first written submission, paras. 169-190.
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state-level measures from the calculation of India's AMS.
34. In this respect, a finding of WTO -inconsistency based on India's MPS alone would not mean
that, in order to bring its AMS within de minimis levels, India would need to reduce only its MPS
measures. Rather, to comply with the Panel's findings, India would have to ensure that the sum of
all types of domestic support – MPS, non-exempt direct payments, or any other non-exempt policies
– does not exceed its de minimis levels under the Agreement on Agriculture.
E. India's has failed to rebut the complainants' prima facie case of violation under
Article 7.2(b) of the Agreement on Agriculture
35. India does not dispute that it legally mandates sugar mills to purchase sugarcane at the
administered prices. Similarly, India takes no issue with the data used by Guatemala in the domestic
support calculations or with the results of these calculations.59 India's defence in this proceeding has
focused on disputing the legal characterization of the FRP and the SAP as MPS.
36. With respect to the domestic support measures other than MPS, India agrees that the domestic
support provided through non -exempt direct payments and other non -exempt measures may be
calculated using budgetary outlays. 60 However, India argues that, because the FRP and the SAPs
should not be counted as domestic support, the remaining state -level measures would be the only
domestic support to be accounted for, but that they do not alone exceed the 10% de minimis rule.61
37. India's arguments are based on an incorrect reading of Annex 3 of the Agreement on
Agriculture. As demonstrated by Guatemala, the FRP and the SAPs do provide domestic support. 62
Together, the FRP, the SAPs and the two state-level measures provide an overall amount of domestic
support that exceeds the 10% de minimis rule.63
38. In the following subsections, Guatemala will rebut the arguments put forward by India.
1. Domestic support need not consist of budgetary outlays and
revenue foregone by government or their agents
39. India alleges that domestic support can exist only if the support consists of budgetary outlays
or revenue foregone, but not when the government sets an AAP to be paid by private entities. India
contends that its argument is grounded in paragraph 2 of Annex 3 read together with paragraph 1
of Annex 3 of the Agreement on Agriculture.
40. Paragraphs 1 and 2 of Annex 3 of the Agreement on Agriculture provide:
1. Subject to the provisions of Article 6, an Aggregate Measurement
of Support (AMS) shall be calculated on a product -specific basis for
each basic agricultural product receiving market price support, non -
exempt direct payments, or any other subsidy not exempted from the
reduction commitment ("other non-exempt policies"). Support which
is non-product specific shall be totalled into one non-product-specific
AMS in total monetary terms.
2. Subsidies under paragraph 1 shall include both budgetary outlays
and revenue foregone by governments or their agents. (emphasis
added).
41. According to India, paragraph 2 of Annex 3 establishes that MPS, as a form of domestic
support, can be provided only when "governments or their agents" purchase the agricultural product
at the AAP. India also argues that the term "both", which follows the term "include", limits "the
universe of actions from/by the government or their agents to budgetary outlays and revenue

59 See also Guatemala's closing statement at the first substantive meeting, para. 2.10.
60 India's response to Panel question 49.
61 India's first written submission, para. 82; India's opening statement at the first substantive meeting,
para. 11.
62 Guatemala's opening statement at the first substantive meeting, paras. 3.7-3.14; Guatemala's closing
statement at the first substantive meeting, paras. 2.5-2.9.
63 Guatemala's updated calculations of India's AMS, Exhibit GTM-45 (Revision 12 May 2021).
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foregone".64
42. India's interpretation is legally incorrect and is at odds with other provisions of the Agreement
on Agriculture. India incorrectly reads the clause "shall include" as "shall only include". In essence,
India's argument requires incorporating words into paragraph 2 of Annex 3 that simply are not there.
India effectively reads the terms "shall include" as "shall only include". This interpretative approach
is not permissible under article 3.2 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Article 31 of the Vienna Convention on the Law of Treaties
("Vienna Convention") and, therefore, should be rejected by the Panel.65
43. As noted in Guatemala's opening statement at the first substantive meeting, 66 the ordinary
meaning of the term "include" is "[c]ont ain as part of a whole" 67, "that what follows is not an
exhaustive, but a partial, list of all covered items" 68. The term "include" is used to indicate that the
examples that follow are "illustrative, not exhaustive"69, "illustrative and expansive"70, and that there
may be other issues to be considered among those mentioned. 71 Hence, the stipulation in
paragraph 2 of Annex 3 that subsidies "shall include" budgetary outlays and revenue foregone by
governments or their agents" merely illustrates the types of measures that can constitute domestic
support. It does not have the meaning ascribed by India of limiting MPS to those measures that
involve budgetary outlays or revenue foregone by governments.
44. Furthermore, India presents an equally invalid argument when asserting that the term "both"
after the term "include" in paragraph 2 of Annex 3 indicates that domestic support is limited to
budgetary outlays and revenue foregone. The term "both" does not have the limiting effect that India
is attaching to it. The term "both" is used when referring to "two things, people, or groups previously
specified", that is, to emphasise that "the one as well as the other" is covered under a relevant
category.72 Thus, the clause "shall include both" simply means that two examples are being provided.
It does not mean that the two elements stated thereafter are the only possible means of providing
domestic support. Canada73, the European Union74, Japan75 and the United States76 also agree that
domestic support is not limited to budgetary outlays and revenue foregone.
45. Moreover, Article 6.1 and paragraphs 1 and 8 of Annex 3 of the Agreement on Agriculture
confirm that domestic support measures are not limited to budgetary outlays and revenue foregone.
Article 6.1, titled "Domestic Support Commitments", states that the "domestic support reduction
commitments of each Member […] shall apply to all [] domestic support measures in favour of
agricultural producers" (emphasis added), which means that the scope of application of domestic
support commitments is broad and in no manner limited to the subset of measures argued by India.
Moreover, nothing in paragraph 1 of Annex 3, which sets out the three different types of domestic
support, limits domestic support measures to budgetary outlays and revenue foregone.
46. Nowhere in paragraph 8 of Annex 3 is there any indication that MPS is limited to budgetary
outlays and revenue foregone by governments or their agents as alleged by India. In fact, MPS exists
when there is an AAP; a production eligible to receive that AAP; and there is a FERP that is lower
than the AAP. Guatemala agrees with the panel in Korea – Various Measures on Beef that "[m]arket
price support as defined in Annex 3 can exist even where there are no budgetary payments". 77 As
explained by that panel, this is because "[m]arket price support gauges the effect of a government
policy measure on agricultural producers of a basic product rather than the budgetary cost of that

64 India's closing statement at the first substantive meeting, para. 27-28.
65 Guatemala's opening statement at the first substantive meeting, paras. 3.7-3.14; Guatemala's closing
statement at the first substantive meeting, paras. 2.5-2.9.
66 Guatemala's opening statement at the first substantive meeting, para. 3.8.
67 Shorter Oxford Dictionary, 6th Ed., Definition of "include", p. 1353, Exhibit GTM-46.
68 Panel Report, China – Publications and Audiovisual Products, para. 7.294.
69 Appellate Body Report, Chile – Price Band System, paras. 209-210.
70 Appellate Body Report, Australia – Apples, paras. 174-175.
71 Panel Report, EC – Bed Linen, para. 6.156.
72 Oxford English Dictionary, OED Online, "both, pron., adv., and adj.", Exhibit JE-155.
73 Canada's oral statement at the first substantive meeting, para. 7.
74 The European Union's oral statement at the first substantive meeting, para. 4.
75 Japan's oral statement at the first substantive meeting, para. 5.
76 The United States' third party submission, para. 22.
77 Panel Report, Korea – Various Measures on Beef, para. 827.
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measure borne by government".78
47. Therefore, India's argument that the term "both" after the term "include" limits domestic
support to budgetary outlays and revenue foregone by government and their agents should be
rejected by the Panel.
48. Moreover, India does not explain how its interpretation of paragraphs 2 of Annex 3 can be
reconciled with other provisions of the Agreement on Agriculture related to domestic support. For
example, Article 6.2 of the Agreement on Agriculture provides that "government m easures of
assistance, whether direct or indirect" are subject to domestic support reduction commitments.
Similarly, paragraph 1(a) of Annex 2 of the Agreement on Agriculture indicates that domestic support
may consist of "transfers from consumers". India does not explain how it reconciles its view that all
forms of domestic support must necessarily involve budgetary outlays and revenue foregone with
the fact that the Agreement on Agriculture recognizes that domestic support can consist of "indirect
government measures of assistance" and "transfers from consumers".
2. To resolve the dispute, the Panel need not determine whether the
three types of domestic support in paragraph 1 of Annex 3 of the
Agreement on Agriculture are "subsidies"
49. India's argument that, under paragraph 2 of Annex 3, MPS can exist only if there are budgetary
outlays or revenue foregone is predicated on the notion that the clause "any other subsidy" in
paragraph 2 applies to all three types of domestic support listed in paragraph 1 of Annex 3, including
MPS. That is, according to India, all three forms of domestic support listed therein constitute
"subsidies".79
50. As Guatemala explained, 80 an interpretation made pursuant to Article 3.2 of the DSU and
Article 31 of the Vienna Conven tion supports Guatemala's view that "market price support" is not
limited to subsidies. Article 31(1) of the Vienna Convention provides that "[a] treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose" (emphasis added).
51. With respect to the ordinary meaning of the terms, nothing in paragraphs 1 and 8 of Annex 3,
the relevant provisions to ascertain th e meaning of MPS, limits MPS to subsidies. Paragraph 1 of
Annex 3 provides that domestic support measures include MPS. Paragraph 8 of Annex 3 identifies
the constituent elements of MPS and therefore clarifies that MPS exists whenever a Member: (i) sets
an AAP; (ii) determines the quantity of production eligible to receive that AAP; and (iii) there is an
FERP which is lower than the AAP. The ordinary meaning of these terms has been clarified by previous
WTO panels and the Appellate Body.81
52. These terms a re used in a specific context – the rules on domestic support provided in the
Agreement on Agriculture. Article 1(h)(ii) states that the level of domestic support provided during
any year of the implementation year and thereafter will be calculated " in acc ordance with the
provisions of this Agreement, including Article 6 […]". The provisions of the Agreement on
Agriculture, including Articles 6.1, 6.2, 7.1, 7.2(a), paragraph 1 of Annex 2 and paragraph 13 of
Annex 3 of the Agreement on Agriculture, provide that the disciplines on domestic support apply to
domestic support "measures", which is a much broader category than just "subsidies". If, as India
suggests, the domestic support provisions and reduction commitments were intended to apply only
to "subsidies ", the drafters would have specified in Article 6.1 that "domestic support reduction
commitments of each Member […] shall apply to all [] domestic support subsidies in favour of
agricultural producers." The other references to measures in the provisions mentioned above would
also have been stated differently. The drafters did not do so. They expressly used the term
"measures" rather than "subsidies". Thus, as reflected in these provisions of the Agreement on
Agriculture, the disciplines on domestic support apply to domestic support "measures" in general,
not only to "subsidies", as argued by India.
53. Indeed, India's interpretative approach would make redundant the treaty term "domestic

78 Ibid.
79 India's closing statement at the first substantive meeting, paras. 24-25, 28.
80 Guatemala's opening statement at the first substantive meeting, paras. 3.1-3.18; Guatemala's second
written submission, paras. 6-53.
81 See footnote 43 above.
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support" in Articles 1(b) and (h), 3.1, 6.1 – 6.5, 7.1 and 7.2(a), 13( a) and 13(b), 18.3 and 18.4,
paragraph 1 of Annex 2, paragraph 5 of Annex 3 and paragraph 1 of Annex 4 of the Agreement on
Agriculture. If all three forms of domestic support listed in paragraph 1 of Annex 3 were subsidies,
there would have been no need fo r the drafters of the Agreement on Agriculture to introduce the
term "domestic support" in the first place. 82 Equating "domestic support" with "subsidies" would
reduce the terms "domestic support" in the Agreement on Agriculture to redundancy or inutility – an
interpretative approach that is impermissible under article 3.2 of the DSU and Article 31 of the Vienna
Convention.83
54. This is also confirmed by paragraph 13 of Annex 3, which provides that "[o]ther non -exempt
measures" include "input subsidies and other measures such as marketing-cost reduction measures"
(emphasis added). The fact that "other -non-exempt measures" includes "input subsidies" makes
clear that "measures" is a broader term than "subsidies". If the phrase "other non-exempt measures"
covered only subsidies, this phrase should have read "[o]ther non-exempt subsidies" and would have
included "input subsidies and other subsidies", not "input subsidies and other measures". Thus,
domestic support measures may include subsidies but are not limited to them.
55. Moreover, Articles 6.1 and 7.1 of the Agreement on Agriculture, read together with Articles 6.2,
6.5 and Annex 2 provide that all domestic support measures, unless expressly exempted by the
agreement, are to be measured and included in a Member's AMS.84 Paragraph 1 of Annex 3 identifies
three forms of domestic support measures, one of which is market price support. As explained below
in section V.E.3, paragraph 8 of Annex 3 sets out the constitutive elements and the price-gap formula
to calculate MPS. None of these provisions limits MPS to subsidies.
56. Guatemala's proposed interpretation is also in line with the object and purpose of the
Agreement on Agriculture, which, as noted above, consists of "correcting and preventing restrictions
and distortions in world agricultural markets" .85 If one were to accept India's argument that MPS
covers only subsidies provided by governments or their agents in the form of budgetary outlays and
revenue foregone, it would be easy for WTO Members to circumvent their MPS obligations by
requiring private entities to pay AAPs.
57. Therefore, based on the ordinary meaning to be given to the terms of the treaty in their context
and in the light of the object and purpose of the Agreement on Agriculture, MPS is not limited to
subsidies. Moreover, the third parties do not consider MPS to be a subsidy in the sense of paragraph
2 of Annex 3.86
58. Furthermore, based on the syntax of paragraph 1 of Annex 3, there could be different ways of
interpreting the phrase "any other subsidy" in paragraph 1, all of which lead to a different conclusion
than the one reached by India. For example, one possible interpretation is that the phrase "any other
subsidy" in paragraph 1 indicates that some domestic support measures may take the form of
"subsidies" but not necessarily all of them. 87 One could also take the view that this phrase refers
only to the third category of domestic support listed in paragraph 1 of Annex 3, i.e. other non-exempt
policies.88 Moreover, the phrase "any other subsidy" in paragraph 1 of Annex 3 could also be
interpreted more broadly, as referring to the second and the third category of domestic support listed
in that provision (i.e., non -exempt direct payments and other non -exempt policies). A 1991 draft
version of Annex 3 of the Agreement on Agriculture titled "Dom estic Support: The Definition of the
AMS" (MTN.GNG/AG/W/1/Add.4, pages 1 and 2) suggests that paragraph 2 of Annex 3 was included
in the Agreement on Agriculture under the understanding that only non-exempt direct payments and

82 See also the European Union's third party submission, para. 43.
83 Appellate Body Report, US – Gasoline, p. 23, citing, inter alia, Corfu Channel Case (1949) ICJ Reports,
p. 24; Territorial Dispute Case (Libyan Arab Jamahiriya v. Chad) (1994) ICJ Reports, p. 23.
84 As noted by Guatemala in its first written submission, the domestic support measures exempted from
commitments are the "green box" measures described in Annex 2, the "development box" measures described
in Article 6.2, and the "blue box" measures described in Article 6.5.
85 Agreement on Agriculture, third recital of the preamble.
86 See e.g. Brazil's opening statement at the first substantive meeting, para. 31. See also the European
Union's third party submission, paras. 42-60, and the European Union's oral statement at the first substantive
meeting, paras. 5-7.
87 Australia's opening statement at the first substantive meeting, paras. 42-43.
88 See Brazil's opening statement at the first substantive meeting, para. 31. See also the European
Union's third party submission, paras. 42-60, and the European Union's oral statement at the first substantive
meeting, paras. 5-7.
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other non-exempt policies would be considered as the "subsidies under paragraph 1" of Annex 3.89
59. In any event, Guatemala considers that the Panel need not determine whether the three types
of domestic support in paragraph 1 of Annex 3 of the Agreement on Agriculture are "subsidie s" to
resolve this dispute. Even assuming arguendo that the three different types of domestic support are
"subsidies", as explained above, they are not limited to revenue foregone and budgetary outlays by
government or their agents, as argued by India. This is because, the expression "shall include both"
in paragraph 2 of Annex 3 does not have the limiting effect that India erroneously attributes to it.
This means that MPS, one of the categories of domestic support listed in paragraph 1 of Annex 3,
can exist when the government establishes an AAP to be paid by private operators. This is exactly
what happens in this case: India is providing MPS by fixing an AAP – i.e. the FRP and the SAPs - and
legally requiring certain entities – i.e. sugar mills – to pay it.
3. India erroneously asserts that paragraph 8 of Annex 3 is relevant
only for calculating MPS, but not for determining whether a
measure qualifies as MPS
60. India argues that the existence of MPS and the calculation of MPS are two distinct matters.90
For India, the legal characterization of a measure as MPS is addressed in paragraphs 1 and 2 of
Annex 3, whereas the calculation of MPS is addressed in paragraph 8 of Annex 3.91
61. India attempts to introduce an artificial distinction between the concep ts of existence of MPS
and calculation of MPS. India's claim that paragraph 8 of Annex 3 does not define MPS is undermined
by paragraph 1 of Annex 4 ("Domestic Support: Equivalent Measurement of Support"), which
provides that MPS is defined in Annex 3. The definition of MPS is found in paragraph 8 of Annex 3 as
follows:
Market price support: market price support shall be calculated using
the gap between a fixed external reference price and the applied
administered price multiplied by the quantity of production eligible to
receive the applied administered price.
62. By stipulating the manner in which MPS must be calculated, paragraph 8 of Annex 3 identifies
the constituent elements of MPS and, thus, defines the measures that constitute MPS. Accordingly,
MPS exists whenever a Member: (i) sets an AAP; (ii) determines the quantity of production eligible
to receive that AAP; and (iii) there is a FERP which is lower than the AAP.
63. It is not unusual in the Agreement on Agriculture to find definitions based on the result of
applying certain calculations. For example, Article 1(a) of the Agreement on Agriculture defines AMS
as the "annual level of support, expressed in monetary terms", which means that AMS is a dynamic
concept that may change from year to year, and which is expressed in monetary terms. This may be
explained by the fact that the obligations imposed by the Agreement on Agriculture on domestic
support are based on reduction commitments for which calculations are relevant.
64. Thus, India's argument that the legal characterization of a measure as MPS is addressed in
paragraphs 1 and 2 of Annex 3, while the calculation of MPS is addressed in paragraph 8 of
Annex 3, stems from an incorrect reading of Annex 3. It should, therefore, be rejected by the Panel.
As established by Guatemala, by stipulating the manner in which MPS must be calculated,
paragraph 8 of Annex 3 identifies the constituent elements of MPS and, thus, defines the measures
that constitute MPS.
4. India's constituent data and methodology confirm that the FRP and
the SAP provide MPS
65. India argues that the constituent data and methodology ("CDM") of India's Schedule is not
relevant for the determination of whether the FRP and the SAPs are MPS. 92 Guatemala disagrees.

89 See Guatemala's second written submission, paras. 37-38.
90 India's closing statement at the first substantive meeting, paras. 14, 30. India's response to Panel's
question 48.
91 India's closing statement at the first substantive meeting, para. 14.
92 India's closing statement at the first substantive meeting, para. 37. India's response to Panel's
question 48(d).
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CDM includes information that is characteristic of and essential for the understanding and calculation
of a Member's AMS.93 Indeed, the fact that India took no issue with calculating MPS for sugarcane
based on an AAP paid by producers during 1986 -1988 is significant as it co nfirms that India itself
considers that the FRP and the SAPs provide MPS within the meaning of the Agreement on
Agriculture.94
66. India further argues that "[i]f a Member's Schedule is relied upon to interpret the meaning of
market price support (despite the clear provisions of paragraph [sic] 2 and 1 of Annex 3), this will
lead to a situation where there will be multiple meanings of the same terminology under the AoA
depending upon the Schedule of a Member"95.
67. Guatemala considers that a Member's CDM provides relevant context to confirm that a
measure provides AMS. Considering this information as context would not result in "multiple
meanings of the same terminology under the AoA depending upon the Schedule of a Member".
68. If Annex 3 defines a specific term, the CDM of a Member can further elaborate on this definition
to confirm that meaning but logically it cannot depart from Annex 3. As noted by the Appellate Body
in EC – Export Subsidies on Sugar96, Members are not authorised to include CDM in th eir Schedule
that depart from the definitions of Annex 3. This is supported by the general rule under Article 21 of
the Agreement on Agriculture, which states that this Agreement prevails over provisions of the
GATT 1994. Thus, given that a Member's CDM is part of the GATT 1994,97 in the event of a conflict
between that Members' CDM and the Agreement on Agriculture, the latter would prevail. Therefore,
as part of the GATT 1994, CDM cannot be used to deviate from the text of Annex 3 of the Agreement
on Agriculture, and thus, there cannot exist "multiple meanings of the same terminology under the
AoA depending upon the Schedule of a Member", as argued by India, and thus, India's argument
should be rejected by the Panel.
VI. INDIA'S EXPORT SUBSIDIES FOR SUGAR ARE INCONSISTENT WITH ARTICLES 3.3,
8, 9.1(A) AND (C) OF THE AGREEMENT ON AGRICULTURE, AND ARTICLE 3.1(A) OF
THE SCM AGREEMENT
A. Introduction
69. India has adopted measures to incentivise its sugar exports as a way to remove the excess
supply of sugar from its domestic market. India's excessive domestic support for sugarcane
producers generated a surplus of sugarcane and, consequently, also a surplus of sugar. This has led
to yet another problem – a drop in domestic sugar prices. As rec ognized by Indian authorities, the
"excess supply over demand for sugar has created a downward pressure on prices of sugar in the
country".98 To alleviate all these problems, India adopted programmes to provide sugar mills with
subsidies conditioned on their compliance with export requirements, the ultimate goal being to allow
domestic sugar prices to increase and, thus, to provide liquidity to sugar mills so they can pay
sugarcane farmers the high administered prices.
70. India's export subsidies for sugar operate by virtue of various legal instruments and schemes.
In 2015, India introduced the "Minimum Indicative Export Quotas" scheme (or MIEQ), which requires
the Indian Government to allocate export quotas to each sugar mill in India. The Indian Government
requires that sugar mills comply with their MIEQs as a condition to receive subsidies under other
schemes, namely the Scheme for Assistance to Sugar Mills, the Buffer Stock Scheme 2018, and the
Buffer Stock Scheme 2019, all of which envisage the provisi on of specified amounts of money to
sugar mills. By making these subsidies conditional on compliance with export quotas, India maintains
subsidies contingent on export performance.

93 Panel Report, China – Agricultural Producers, para. 7.144.
94 G/AG/AGST/IND, pp. 3 and 28.
95 India's response to Panel's question 48(e).
96 Appellate Body Report, EC – Export Subsidies on Sugar, paras. 220-222.
97 Pursuant to Article 1(a)(ii) of the Agreement on Agriculture, the CDM of a Member as found in the
supporting table of that Member were "incorporated by reference in Part IV of the Member's Schedule". In
accordance with Article II:7 of the GATT, "Schedules […] are […] an integral part of Part I of [the GATT 1994]".
According to Article 3.1 of the Agreement on Agriculture, "the domestic support and export subsidy
commitments in Part IV of each Member's Schedule … are hereby made an integral part of GATT 1994".
98 Commission for Agricultural Costs and Prices ("CACP"), Price Policy for Sugarcane (2019-20 sugar
season), August 2018, Exhibit JE-53, p. 2, para. 1.5.
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71. In 2019, India continued promoting sugar exports by introducing yet an other scheme – the
"Maximum Admissible Export Quantity" scheme (or MAEQ). Similar to the other export subsidies just
described, the MAEQ operates on the basis of export quotas fixed by the Government for each sugar
mill in India. If sugar mills comply with these export quotas, they receive a subsidy in the form of a
lump sum of INR 10'448 per metric tonne of sugar exported. The MAEQ Scheme is therefore another
programme maintained by India that is contingent on export performance.
B. Operation of India's export subsidies for sugar
72. India provides, through the following schemes, subsidies to sugar mills on the condition that
they export certain quantities of sugar each year:
(i) Subsidies provided to sugar mills under the Scheme for Assistance to Sugar mills, which
operates in conjunction with export performance requirements under the Minimum
Indicative Export Quotas ("MIEQ");
(ii) Subsidies provided to sugar mills under the Scheme for creation and maintenance of
buffer stock ("Buffer Stock Scheme 2018"), which oper ates in conjunction with export
performance requirements under the MIEQs;
(iii) Subsidies provided to sugar mills under the Scheme for creation and maintenance of
buffer stock ("Buffer Stock Scheme 2019"), which operates in conjunction with export
performance requirements under the MIEQs; and
(iv) Subsidies provided to sugar mills under the Maximum Admissible Export Quantity
scheme ("MAEQ Scheme 2019").
73. These measures constitute export subsidies within the meaning of Articles 9.1(a) and 9.1(c)
of the Agriculture Agreement. Given that India has no export subsidy reduction commitments in its
Schedule of Concessions, and consequently no export subsidy entitlements, these export subsidies
are inconsistent with India's obligations under Articles 3.3, 8, and 9.1 of the Agreement on
Agriculture. Further, India's export subsidies also constitute export subsidies that are prohibited by
Article 3.1(a) of the SCM Agreement.
1. Minimum Indicative Export Quotas (MIEQs)
74. Since 2015, India has adopted measures requiring sugar mills to export specific amounts of
sugar each year. These requirements have taken the form of minimum indicative export quotas
(MIEQs). India first adopted MIEQs for sugar season 2015/2016 99 and has continued doing so for
subsequent seasons.100 Under this scheme, the Indian Government first determines a global amount
of sugar that must be exported by all of the sugar mills in the country in a given sugar season. For
example, for season 2018/2019, this global amount was 5 million metric tonnes. 101 Thereafter, the
Government converts that global export amount into individual allocations of export quotas for each
sugar mill in India. These are the so -called "mill-wise allocations", which the Indian Government
announces by releasing a list of hundreds of sugar mills in India along with the exact quantity of
metric tonnes of sugar that each sugar mill must export in that sugar season.102

99 DFPD Order of 18 September 2015, "Allocation of sugar factory-wise Minimum Indicative Export
Quotas (MIEQ) under tradable export scrip schemes" (hereinafter: MIEQ Order for 2015/2016), Exhibit JE-109.
This measure was withdrawn through Notice of 8 June 2016 of the Department of Food and Public Distribution
on the subject "Withdrawal of order dated 18.09.2015 regarding allocation of Minimum Indicative Export Quota
(MIEQ) under tradable export scrip scheme:-regarding", Exhibit GTM-32.
100 Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food
and Public Distribution, Revised allocation of sugar factory-wise Minimum Indicative Export Quotas (MIEQ)
under tradable export scrip scheme – Regarding, 9 May 2018 (hereinafter: MIEQ Order for 2017/2018), Exhibit
GTM-33; and DFPD Order of 28 September 2018, "Allocation of sugar factory-wise Minimum Indicative Export
Quotas (MIEQ) of sugar for export in sugar season 2018-19 under tradable export scrip schemes" (hereinafter:
MIEQ Order for 2018/2019), Exhibit JE-108.
101 MIEQ Order for 2018/2019, Exhibit JE-108, paragraph 2.
102 See, for example, DFPD Order of 28 September 2018, "Allocation of sugar factory-wise Minimum
Indicative Export Quotas (MIEQ) of sugar for export in sugar season 2018-2019 under tradable export scrip
schemes", Exhibit JE-108.
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75. The MIEQ Orders for each sugar season are adopted by the DFPD, a governmental agency that
is part of the Ministry of Consumer Affairs, Food and Public Distribution.
76. The MIEQ Orders were issued pursuant to Clause 5 of the Sugar (Control) Order 1966, which
gives the Central Government the power "by general or special order" to issue "directions" regarding
the "maintenance of stocks, storage, sale, grading, marking, weighment, delivery and distribution"
of sugar.103 The various MIEQ instruments therefore qualify as "orders" under domestic Indian law.104
2. Scheme for Assistance to Sugar Mills
77. The Scheme for Assistance to Sugar Mills was first introduced by the DFPD on 2 December
2015 "with a view to offset the cost of cane and facilitate timely payment of cane price dues of
farmers"105, and given that "cane price arrears of farmers reached to an alarming level".106 In 2015,
this programme was originally labelled as the "Scheme for extending production subsidy to sugar
mills", but was later re-named for seasons 2017/2018 and 2018/2019 to its current name of "Scheme
for Assistance to Sugar Mills".
78. Under the Scheme for Assistance to Sugar Mills, the Indian Government provides sugar mills
with direct payments that, by law, can be used for the sole purpose of paying cane arrears owed to
sugarcane growers.
79. Pursuant to the Scheme for Assistance to Sugar Mills, the Indian Government establishes a
fixed monetary amount provided to sugar mills per quintal of sugarcane crushed. 107 For season
2015/2016 the amount of the subsidy was INR 4.5/quintal108; for season 2017/2018, it increased to
INR 5.50/quintal, and for season 2018/2019109, it increased further to INR 13.88/quintal.110
80. The DFPD Notification establishing the subsidy for 2015/2016 requires compliance with an
export performance requirement as follows:
Those mills which have achieved at least 80% of the targe ts as per
terms and conditions under the Minimum Indicative Export Quota
(MIEQ) scheme notified on 18.09.2015 and in case of mills having
distillation capacities to produce ethanol have achieved 80% of the
targets notified on 16.09.2015 by the Department under the EBP shall
be eligible for the above production subsidy.111
81. According to this provision, in order to receive the subsidy for season 2015/2016, sugar mills
were required to comply with the export requirements adopted by the DFPD in the form of minimum
indicative export quotas or MIEQs.
3. Buffer Stock Scheme 2018

103 Clause 5 of the Sugar (Control) Order 1966, Exhibit JE-44.
104 India confirmed this understanding in its response to Panel's Question 31 (answered as Question 30).
105 Notification No. 20(43)/2015-S.P.-I of the Ministry of Consumer Affairs, Food & Public Distribution,
Department of Food & Public Distribution of 2 December 2015 (hereinafter: Notification establishing the
Scheme for extending production subsidy to sugar mills for 2015/2016), Exhibit JE-76, para. 2(i). This measure
was withdrawn on 19 May 2016 through Notification No. 20(43)/2015-S.P.-I of 19 May 2016 of the Department
of Food and Public Distribution, Exhibit GTM-34.
106 Press Information Bureau, Government of India, Ministry of Consumer Affairs, Food & Public
Distribution; Central Government issues orders for extending assistance to clear the dues of sugarcane farmers,
9 May 2018, Exhibit GTM-35.
107 To recall, 1 quintal equals 100 kilograms.
108 Notification establishing the Scheme for extending production subsidy to sugar mills for 2015/2016,
Exhibit JE-76, para. 2(i).
109 Notification No. 1(5)/2018-S.P.-I of the Ministry of Consumer Affairs, Food & Public Distribution,
Department of Food & Public Distribution of 9 May 2018 (hereinafter: Notification establishing the Scheme for
Assistance to Sugar Mills for 2017/2018), Exhibit JE-75, para. 3(i).
110 Notification No. 1(14)/2018-S.P.-I of the Ministry of Consumer Affairs, Food & Public Distribution,
Department of Food & Public Distribution of 5 October 2018 (hereinafter: Notification establishing the Scheme
for Assistance to Sugar Mills for 2018/2019), Exhibit JE-74, para. 3(i).
111 Notification establishing the Scheme for extending production subsidy to sugar mills for 2015/2016,
Exhibit JE-76, para. 2(iii)
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82. On 15 June 2018, India introduced the "Scheme for the Creation and Maintenance of Buffer
Stock", which seeks to reduce the supply of sugar in the domestic market and, consequently, t o
"stabilize the domestic sugar price" ("Buffer Stock Scheme 2018").112 Through this voluntary scheme,
India seeks to incentivize sugar mills to store a global quantity of 3 million metric tonnes of sugar.
This global amount is divided into mill-wise allocations that establish the individual quantities of sugar
that each sugar mill is expected to store.113
83. The Buffer Stock Scheme 2018 provides participating sugar mills with subsidies related to the
carrying costs of maintaining sugar stocks. As this measure also seeks to address the problem of
cane arrears, sugar mills must use the amount of the subsidy to pay sugarcane growers the arrears
owed. Participating sugar mills undertake to "set apart the quantity allocated as buffer stock and
store it in a separate and distinctly identifiable lots and stock within the mill premises".114
84. The Buffer Stock Scheme as established on 15 June 2018 and amended on 31 December 2018,
requires, as a condition for receiving the buffer stock subsidy, that sugar mills "fully comply with all
the orders/directives issued by Department of Food & Public Distribution for compliance during 2018-
19 sugar season".115 As previously established, MIEQ Orders constitute one of the "orders/directives"
issued by the DFPD during the 2018/2019 sugar season. This order requires sugar mills to export
specific quantities of sugar during that sugar season as a condition for receiving the buffer stock
subsidy for season 2018/2019.
4. Buffer Stock Scheme 2019
85. On 31 July 2019, India adopted the "Scheme for Creation and Maintenance of Buffer Stock"
("Buffer Stock Scheme 2019"),116 which is a continuation of the Buffer Stock Scheme 2018 already
described. As will be explained below, under the rules of the Buffer Stock Scheme 2019, the amount
of the eligible buffer stock subsidy is also linked to compliance wi th export requirements under the
MIEQ Order for season 2018-2019.
86. As with the previous buffer stock schemes, the Buffer Stock Scheme 2019 provides a subsidy
to sugar mills that opt to participate in this scheme by storing specific quantities of sugar a llocated
by the DFPD. Under the Buffer Stock Scheme 2019, the total quantity of sugar to be stored by all
sugar mills is 4 million MT. 117 This represents an increase from the 3 million MT established under
the Buffer Stock Scheme 2018.
87. The Buffer Stock Scheme 2019 contains a rule linking the eligible quantity of subsidized buffer
stock with compliance by sugar mills with their allocated MIEQs:
The Central Government shall make mill -wise allocation of buffer
stock having regard to the stock held by it. In case a sugar mill has
failed to export any quantity up to June, 2019 against the MIEQ
issued vide directive dated 28.09.2018 of DFPD, its stock shall be
considered after deducting the quantity equivalent to its allocated
MIEQ. […] 118
88. This means that for a sugar mill that, as of June 2019, did not export any of the quantity stated
in its MIEQ allocation, its eligible buffer stock will be reduced by deducting the entire quantity of its
MIEQ allocation. As the amount of the buffer stock subsidy depends on the amount of the eligible
buffer stock, a smaller buffer stock means a lower subsidy. Hence, to avoid having its buffer stock
quantity reduced, the sugar mill must export at least some sugar pertaining to its allocated MIEQ for
season 2018/2019. The corollary is that export performance under the MIEQ is rewarded by means

112 Notification No. 1(6)/2018-SP-I of the Ministry of Consumer Affairs, Food & Public Distribution,
Department of Food & Public Distribution of 15 June 2018 (hereinafter: Notification establishing the Buffer
Stock Scheme 2018), Exhibit JE-78.
113 Notification establishing the Buffer Stock Scheme 2018, Exhibit JE-78, para. 2.
114 Ibid.
115 Notification No. 1(6)/2018-SP-I of the Ministry of Consumer Affairs, Food & Public Distribution,
Department of Food & Public Distribution of 31 December 2018, Exhibit JE-112, para. 2.
116 Notification No. 1(8)/2019-SP-I. of the Ministry of Consumer Affairs, Food & Public Distribution,
Department of Food & Public Distribution of 31 July 2019 (hereinafter: Notification establishing the Buffer Stock
Scheme 2019), Exhibit JE-77.
117 Notification establishing the Buffer Stock Scheme 2019, Exhibit JE-77, preamble.
118 Notification establishing the Buffer Stock Scheme 2019, Exhibit JE-77, para. 2.
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of a larger buffer stock subsidy under the Buffer Stock Scheme 2019.
5. Maximum Admissible Export Quantity (MAEQ)
89. On 12 September 2019, India introduced a scheme by which sugar mills receive subsidies if
they comply with sugar export quotas ("MAEQ Scheme 2019"). 119 Consistent with India's prior
measures to incentivise exports, the MAEQ Scheme 2019 was introduced "with a view to facilitate
export of sugar during the sugar season 2019 -20 […] thereby improving the liquidity position of
sugar mills enabling them to clear cane prices dues of farmers for sugar season 2019-20".120
90. Under the MAEQ Scheme 2019, sugar mills receive fixed lump sums that are ostensibly related
to expenses incurred in connection with exportation of sugar:121
 Expense Amount
a Marketing, including handling, quality, up -gradation, debagging and re -
bagging, and other processing costs
INR 4'400/MT
b Internal transport and freight charges, including loading, unloading and
fobbing
INR 3'428/MT
c Ocean freight against shipment from Indian ports to the ports of
destination in foreign countries
INR 2'620/MT
 Total INR 10'448/MT

91. The amount of the subsidy received by sugar mills is calculated as a lump sum per metric
tonne of sugar exported. According to the DFPD Notification establishing the MAEQ Scheme 2019,
the amount of the subsidy is related to expenses incurred by sugar mills . However, nothing in this
instrument requires that the amount of the subsidy be limited to the actual marketing or transport
costs actually incurred by sugar mills. The amount of the subsidy is thus calculated simply by
multiplying the prescribed lump sum by the metric tonnes of sugar exported by a sugar mill.
92. Furthermore, the MAEQ Scheme 2019 clarifies that "[t]he funds to be provided as assistance
to facilitate export is [sic] to be used for payment of cane dues of farmers for the sugar season 2019-
20 and cane price arrears of previous sugar seasons".122 To this end, as with other schemes of India,
the subsidy is deposited in bank accounts of sugarcane growers on behalf of sugar mills.123
C. India's export subsidies for sugar fall under Article 9.1 of the Agreement on
Agriculture.
93. The Scheme for Assistance to Sugar Mills, the Buffer Stock Scheme 2018, and the Buffer Stock
Scheme 2019, in conjunction with the MIEQ Orders, as well as the MAEQ Scheme 2019, all result in
the provision of subsidies to sugar mills that are contingent on compliance with export performance
requirements. These schemes constitute export subsidies for sugar under Articles 9.1(a) and 9.1(c)
of the Agreement on Agriculture. As India does not have commitments in its Schedule reg arding
export subsidies for sugar, it is therefore acting inconsistently with its obligations under Articles 3.3,
8, and 9.1 of the Agreement on Agriculture by providing export subsidies for this product.

119 Notification No. 1(14)/2019-S.P.-I. of the Ministry of Consumer Affairs, Food & Public Distribution,
Department of Food & Public Distribution of 12 September 2019 (hereinafter: MAEQ Notification 2019), Exhibit
JE-114.
120 MAEQ Notification 2019, Exhibit JE-114, preamble.
122 MAEQ Notification 2019, Exhibit JE-114, paras. 1 and 5(i).
123 MAEQ Notification 2019, Exhibit JE-114, para. 5(ii).
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1. India's sugar export subsidies constitute dire ct subsidies
contingent on export performance under Article 9.1(a) of the
Agreement on Agriculture.
94. Article 9.1(a) refers to export subsidies in the form of direct subsidies contingent on export
performance that are provided by governments or their agencies to a firm, an industry, producers of
an agricultural product, or an association of such producers. The type of export subsidy defined in
Article 9.1(a) contains four elements: (i) existence of "direct subsidies, including payments-in-kind";
(ii) provided by "governments or their agencies"; (iii) "to a firm, an industry, to producers of an
agricultural product, to a cooperative or other association of such producers, or to a marketing
board"; and (iv) which are "contingent on export performance".
95. With respect to the first element of Article 9.1(a) , the existence of "direct subsidies", the
complaining party must demonstrate the existence of a "subsidy" as a transfer of economic resources
from the grantor to the recipient for less than full considera tion, that is "direct", i.e. provided in a
manner that is straight and immediate.
96. As noted, in the case of the Scheme for Assistance to Sugar Mills, the subsidy was first set at
INR 4.5/quintal for season 2015/2016, which then increased to INR 5.50/qui ntal for season
2017/2018, and increased again to INR 13.88/quintal for season 2018/2019. 124 Under the Buffer
Stock Scheme 2018 and the Buffer Stock Scheme 2019, sugar mills receive monies related to the
costs of storing the allocated quantities of sugar. S pecifically, the subsidies relate to the costs of
interest, insurance and storage. Under the MAEQ Scheme 2019, the subsidy consists of a specific
lump sum per metric tonne of sugar exported.125
97. Under the second element of Article 9.1(a), the subsidy must be provided "by governments or
their agencies". In the present case, the four subsidies in question are provided by the DFPD, India's
Department of Food and Public Distribution, which is a government agency that belongs to the
Ministry of Consumer Affairs, Food and Public Distribution. Moreover, the introductory paragraphs of
the different instruments establishing these subsidies indicate that these schemes are being notified
by the "Central Government".
98. Concerning the third element of Article 9.1(a) , it must be shown that the direct subsidy is
provided "to a firm, to an industry, to producers of an agricultural product, to a cooperative or other
association of such producers, or to a marketing board". All four of India's subsidies at issue are
provided to sugar mills, i.e. production facilities that transform sugarcane into sugar.
99. Finally, as to the fourth element of Article 9.1(a) , "contingent on export performance", the
contingency on export performance is expressed in the following manner:
• The Scheme for Assistance to Sugar mills establishes, as a condition for receiving the
production subsidy, that sugar mills comply with the export requirements under the MIEQ
Orders. The DFPD Notifications establishing the production subsidy for 2017/2018 and
2018/2019 also require that sugar mills comply with MIEQ Orders as a condition to receive
the production subsidy. As already established, the export requirements under the MIEQ
constitute Orders or Directives of the DFPD.126
• The Buffer Stock Scheme 2018 also operates in conjunction with MIEQ Orders as the subsidy
is provided only to sugar mills that "fully comply with all the orders/directives issued by the
Department of Food & Public Distribution for compliance during 2018-19 sugar season".127
• The Buffer Stock Scheme 2019 is also linked to MIEQ Orders. As explained, the quantity of
sugar stock that may be subsidised can be reduced for sugar mills that fail to export any
quantity of their allocated MIEQ.128

124 See above para. 0.
125 See above para. 0.
126 See above para. 0.
127 Notification No. 1(6)/2018-SP-I of the Ministry of Consumer Affairs, Food & Public Distribution,
Department of Food & Public Distribution of 31 December 2018, Exhibit JE-112, para. 2.
128 See above paras. 0-0.
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• With respect to the MAEQ Scheme 2019, Guatemala notes that this scheme was introduced
"with a view to facilitate export of sugar".129 Thus, the subsidy is available only to sugar mills
that "export at least 50% of [their] MAEQ", 130 and is calculated based on lump sums per
metric tonne of exported sugar.
100. In summary, India's subsidies under the Scheme for Assistance to Sugar Mills, the Buffer Stock
Scheme 2018, the Buffer Stock Scheme 2019, and the MAEQ Scheme 2019 qualify as export
subsidies within the meaning of Article 9.1(a) of the Agreement on Agriculture because they involve
"direct subsidies" that are provided by the Indian Government to sugar mills and are contingent upon
export performance.
2. India's sugar export subsidies constitute payments on the export
financed by virtue of governmental action under Article 9.1(c) of
the Agreement on Agriculture.
101. In addition to constituting export subsidies under Article 9.1(a) of the Agreement on
Agriculture, India's subsidies for sugar exports under the Scheme for Assistance to Sugar Mills, the
Buffer Stock Scheme 2018, the Buffer Stock Scheme 2019, and the MAEQ Scheme 2019 also fall
within Article 9.1(c) as payments on the export of sugar that are financed by virtue of governmental
action.
102. A measure constitutes an export subsidy under Article 9.1(c) if it meets the following elements:
(i) there must be a "payment"; (ii) the payment must be "on the export"; and (iii) the payment must
be "financed by virtue of governmental action, whether or not a charge on the public account is
involved".
103. Concerning the first element of Article 9.1(c), the existence of a payment, as explained above,
the Scheme for Assistance to Sugar Mills, the Buffer Stock Scheme 2018, the Buffer Stock Scheme
2019, and the MAEQ Scheme 2019 all involve the provision of monies to sugar mills.131 The provision
of monies under these schemes constitutes transfers of economic resources and, thus, "payments"
under Article 9.1(c) of the Agreement on Agriculture.
104. India's measures also meet the second element of Article 9.1(c) as they involve payments "on
the export". With respect to the Scheme for Assistance to Sugar Mills, the Buffer Stock Scheme 2018,
and the Buffer Stock Scheme 2019, eligibility to receive the subsidies or the quantity thereof depend
on sugar mills' compliance with the export requirements established in the MIEQ Orders. In the case
of the MAEQ Scheme 2019, the subsidies are expressly made available only for sugar mills that
exported at least 50% of their allocated MAEQ export quotas and are quantified in terms of metric
tonne of exported sugar.
105. Finally, India's measure s also meet the third element of Article 9.1(c), as the payments at
issue are "financed by virtue of governmental action". The payments under the four schemes in
question are financed by the Indian Government pursuant to programmes established by the Indian
Government. Under all four schemes, the payments are provided by India's Department of Food and
Public Distribution, in accordance with pre -established governmental programmes, namely the
Scheme for Assistance to Sugar Mills, the Buffer Stock Scheme 2018, the Buffer Stock Scheme 2019,
and the MAEQ Scheme 2019, all of which were implemented through instruments issued by the
Department of Food and Public Distribution.
106. The above shows that India's sugar export subsidies under the Scheme for Assistance to Sugar
Mills, the Buffer Stock Scheme 2018, the Buffer Stock Scheme 2019, and the MAEQ Scheme 2019
all fall within the scope of Article 9.1(c) as payments on the export financed by virtue of governmental
action. Given that India does not have reduction c ommitments in its Schedule of Concessions
concerning export subsidies, by maintaining these measures, India acts inconsistently with its
obligations under Articles 3.3, 8 and 9.1 of the Agreement on Agriculture.

129 MAEQ Notification 2019, Exhibit JE-114, preamble.
130 MAEQ Notification 2019 Exhibit JE-114, para 2(a).
131 See above paras. 0-0.
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D. India errs in asserting that the complainants must demonstrate an "actual" financial
contribution
107. India asserts that, to substantiate a claim concerning export subsidies under
Article 9 of the Agreement on Agriculture, the complainants must demonstrate that the government
"actually makes a financial contribution".132 India grounds its proposition in the definition of "subsidy"
of Article 1.1(a)(1) of the SCM Agreement, a provision that offers relevant context for construing the
meaning of the term "subsidy" under Article 9 of the Agreement on Agriculture.133 India notes that,
pursuant to Article 1.1(a)(1) of the SCM Agreement, a subsidy shall be deemed to exist if "there is
a financial contribution".134 In India's view, "[t]he use of the operative term 'is' in Article 1.1(a)(1)
indicates that a subsidy can be said to exist only where the government has actually made a 'financial
contribution' under the challenged measures".135
108. Nothing in the Agreement on Agriculture or even the SCM Agreement, on which India relies as
context, supports India's contention. The text of the Agreement on Agriculture contains no indication
that export subsidies exist only when actual disbursements are made.
109. The SCM Agreement further contradicts India's point. The Appellate Body has clarified that a
subsidy consisting of a "direct transfer of funds" encompasses a "conduct on the part of the
government by which money, financial resources, and/or fi nancial claims are made available to a
recipient". The Appellate Body has thus clarified that what matters is whether the government makes
available financial resources, not whether those financial resources have actually been paid.
110. Similarly, a prior WTO panel found that the challenged measure constituted a direct transfer
of funds even though "some disbursements specifically envisaged" under the subsidy programme
were yet to be made. India also fails to mention that the definition of "subsidy" unde r the
SCM Agreement includes a "potential transfer of funds", which implies that a subsidy can exist even
if the funds have not been actually disbursed. In this connection, a previous panel observed that if a
subsidy were deemed to exist only when "funds had actually been effectuated, the Agreement would
be rendered totally ineffective and even the typical WTO remedy (i.e. the cessation of the violation)
would not be possible".136
111. India acknowledges that the complainants have provided "evidence to show that the
government has the legal authority to provide a financial contribution under the challenged measures
or the government made certain budgetary allocations".
112. Without prejudice to Guatemala's arguments above concerning the correct interpretat ion of
Article 1.1(a)(1)(i) of the SCM Agreement, Guatemala notes that the record in these proceedings
already contains evidence showing that the Indian government has made disbursements to sugar
mills pursuant to the export subsidy schemes challenged by Guatemala:
• With respect to the Scheme for Assistance to Sugar Mills for seasons 2015 -2016 and 2017-
2018, India's national budget statements show that India disbursed INR 521 crores and
INR 376 crores, respectively.137
• With respect to the Buffer Stock Scheme 2018, India disbursed INR 200 crores.138
• With respect to the Scheme for Assistance to Sugar Mills for season 2018/2019, one of India's
biggest sugar mills received disbursements from the Indian government.139

132 India's first written submission, para. 107.
133 India's first written submission, para. 105.
134 India's first written submission, para. 107 (original emphasis).
135 Ibid.
137 Notes on Demands for Grants, 2020-2021, Ministry of Consumer Affairs, Food and Public Distribution,
Note 10, Exhibit JE-142.
138 Notes on Demands for Grants, 2020-2021, Ministry of Consumer Affairs, Food and Public Distribution,
Note 13, Exhibit JE-142.
139 Annual Report 2019-20 of Dhampur Sugar Mills Limited, p. 161 (sub-note 1(i) – "Production subsidy
from Government", Exhibit JE-149.
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113. Thus, although not legally required under the Agreem ent on Agriculture or the SCM
Agreements, the complainants have nevertheless produced evidence of actual disbursements by the
Indian government of financial resources to sugar mills under the export subsidy schemes at issue.
E. India incorrectly asserts t hat the complainants have failed to demonstrate the
existence of a "benefit"
114. India further argues that the complainants have failed to demonstrate the existence of a
"benefit", and consequently the existence of a "subsidy".140 India also relies on Appellate Body case
law to argue that the complainants "have failed to identify any benchmark or make any comparison
with a benchmark in a relevant market to demonstrate the existence of a benefit".141
115. India's arguments must be rejected as they are predicated on a flawed understanding of the
meaning of "benefit" in respect of the facts of this dispute. India's references to prior Appellate Body
findings are misplaced as they were made in relation to measures that consisted of paym ents-in-
kind142 and purchases of goods by the Government. 143 In both cases, the Appellate Body correctly
found that a payment-in-kind and the provision of goods do not per se entail a benefit, and thus the
determination of the existence of a benefit required a comparison with a market benchmark.
116. However, in the case of India's export subsidies, the measures are neither payments -in-kind
nor purchases of goods by the government. Rather, as explained by Guatemala, the monetary
amounts provided by India can be described as "grants".144 In the case of grants, there is no need
to make a comparison with a market benchmark in order to determine the existence of a benefit. In
contrast to a payment -in-kind or a provision of goods, grants constitute non -reciprocal fi nancial
contributions. Thus, as previous panels have found, by receiving a grant, the recipient is
"automatically placed in a better position than it would otherwise have been without the grant" 145
because no entity acting pursuant to commercial considerati ons would make such unremunerated
payments.146
F. India has failed to demonstrate that the MAEQ Scheme 2019 is justified under
Article 9.4 of the Agreement on Agriculture
117. India alleges that the MAEQ Scheme 2019 provides export subsidies that fall within the scope
of Articles 9.1(d) and (e) and, therefore, are justified by the special and differential treatment under
Article 9.4 of the Agreement on Agriculture.147 India has further asserted that the subsidies provided
under the MAEQ Scheme 2019 "have a direct relationship to the costs normally incurred towards"148
marketing and transport and that India provides these subsidies "not exceeding the costs incurred
towards these expenses".149
118. As the party invoking the flexibilities of Article 9.4 and asserting that the MAEQ subsidies fall
under Articles 9.1(d) and (e), India bears the burden of substantiating its legal defence and its factual
assertions on this issue. 150 India errs in stating that of Article 9.4 of the Agreement on Agriculture
as an "autonomous right" because it is different from a "typical exception" or a "defense".151 As India
acknowledges, the language in Article 3.3 of the Agreement on Agriculture simply serves to "cross -
refer[]" to Article 9.4.152 A cross-reference does not have the effect of creating an autonomous right,
as alleged by India. It simply means that, when applying the disciplines of Article 3.3, one must
consider the provision of Article 9.4.

140 India's first written submission, para. 110.
141 India's first written submission, para. 112.
142 Appellate Body Report, Canada – Dairy, para. 87.
143 Appellate Body Report, Canada – Feed-in Tariff Program, para. 5.128.
144 Guatemala's first written submission, para. 314.
145 Panel Report, EC and certain Member States – Large Civil Aircraft, para. 7.1501. See also
Guatemala's first written submission, paras. 254 and 315.
146 Panel Report, US – Large Civil Aircraft (2nd complaint), para. 7.1229.
147 India's first written submission, paras. 114-223.
148 India's opening statement at the first substantive meeting, para. 15.
149 India's comments of 27 April 2020, para. 55.
150 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
151 India's opening statement at the second substantive meeting, para. 81.
152 Ibid.
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119. India has failed to discharge its burden because it has not demonstrated th at the MAEQ
subsidies are limited qualitatively and quantitively to the actual costs incurred for marketing and
transport of exported sugar.153
120. First, concerning the lack of qualitative connection to costs incurred for marketing and
transport of sugar exports, the design and structure of the MAEQ Scheme 2019 do not support India's
claim that these subsidies are provided to allow sugar mills to offset these costs. The MAEQ
Notification 2019, which is the Notification issued by India's Department of Food and Public
Distribution that enacted the MAEQ Scheme 2019, clearly states that the purpose of this subsidy is
to allow sugar mills to pay cane arrears. 154 The very text of the MAEQ Notification 2019 thus
contradicts India's assertions about the purpos e of these subsidies. The MAEQ Notification 2019
openly states that sugar mills must use these subsidies to pay cane arrears.
121. In fact, the MAEQ Notification 2019 even contains mechanisms to ensure that the subsidies
are used for no other purpose than to pay cane arrears. To this end, the MAEQ Notification 2019
instructs sugar mills to first open a bank account for cane farmers' use. Thereafter, "[t]he bank shall
credit the amount of assistance to the farmers' accounts on behalf of the mills against can e dues
payable".155
122. Second, even assuming arguendo that the MAEQ subsidies are provided to offset costs of
marketing and transport of sugar exports, the design and structure of the MAEQ Notification 2019
reveal several reasons why these subsidies are not quantitively limited to the actual costs that sugar
mills incur for marketing and transport of sugar exports.
123. As noted, the subsidy under the MAEQ Notification 2019 takes the form of a lump sum provided
to each sugar mill. The actual costs incurred by the sugar mills are not factored into the calculation
of this lump sum. The lump sum is calculated simply by multiplying the number of exported sugar
tonnes by the flat rate stated in the MAEQ Notification 2019.156
124. The flat rate, by definition, f ails to consider the number of circumstances that can result in
varying costs incurred by sugar mills when exporting sugar from India. These different
circumstances, as Guatemala will explain, include the fact that: (i) sugar mills in India make sales
on an ex-mill basis or on a Free on Board ("FOB") basis, such that sugar mills incur no costs at all
for internal transport and/or international transport; and that (ii) sugar mills located in different parts
of India logically incur different transport costs due to their different distances from the mill to the
port of exportation. Guatemala will address these two issues in turn.
125. Additionally, the MAEQ Scheme 2019 provides subsidies for internal transport using a flat rate
of INR 3'428 per tonne of sugar exported for all sugar mills in India. Yet, because sugar mills are
located in different parts of the country, the cost of internal transport will vary greatly from one mill
to another given the different distances from their premises to the port of shipment. It follows that,
by applying a flat rate applicable to any sugar mill regardless of its actual distance between its
premises and the port of shipment, the design and structure of the MAEQ Scheme 2019 make it
impossible to ensure that the subsidy for in ternal transport is limited to the actual costs in every
export shipment.
126. The export sales by sugar mills in the State of Maharashtra serve as a concrete example of
the problem just described. In season 2019/2020, sugar mills located in Maharashtra accounted for
42% of all sugar exports of India, making it India's second largest exporting State in that season.157
A significant majority of Maharashtra's exports were shipped from the ports of Jawaharlal Nehru Port
(JNPT) and Jaigad.158 The average distances from 11 selected exporting sugar mills in Maharashtra
to JNPT and Jaigad ports are 431 km and 308 km, respectively. 159 For those 11 mills, the average
freight rail costs to the ports of JNPT and Jaigad are INR 489 and INR 817, respectively. 160 These

153 See Guatemala's response to Panel's question 42; Guatemala's opening statement at the first
substantive meeting, paras. 4.21-4.26; Guatemala's closing statement at the first substantive meeting,
paras. 3.9-3.13; and Guatemala's response to Panel's question 56(a).
155 MAEQ Notification 2019, Exhibit JE-114, para. 5(ii).
156 Guatemala's first written submission, paras. 236-238.
157 Green Pool Commodity Specialists, Consultancy Report, February 2021, Table 1, Exhibit JE-165.
158 Green Pool Commodity Specialists, Consultancy Report, February 2021, Table 1, Exhibit JE-165.
159 Green Pool Commodity Specialists, Consultancy Report, February 2021, Table 3, Exhibit JE-165.
160 Green Pool Commodity Specialists, Consultancy Report, February 2021, Table 4, Exhibit JE-165.
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costs of internal transport are significantly lower than the flat rate of INR 3'428 provided under the
MAEQ Scheme 2019.
127. India's communications to certain entities inquiring about transport costs for food grains, and
as well as the response by India's Mini stry of Railways 161, cannot possibly indicate the actual
transport costs for sugar in India. The complainants have submitted evidence showing that, contrary
to India's statements, the rates indicated India's Ministry of Railways for good grains are not
applicable to transport of sugar.162
128. India's exercise of inquiring about this information is therefore inadequate to establish the
actual transport costs of sugar, let alone to show that these actual transport costs do not exceed the
actual costs of the tr ansport services described in Articles 9.1(d) and (e) of the Agreement on
Agriculture.
129. For these reasons, Guatemala submits that India has failed to prove that the subsidies under
the MAEQ Scheme 2019 fall within the scope of Articles 9.1(d) and (e) o f the Agreement on
Agriculture. Consequently, India cannot avail itself of the flexibilities afforded under Article 9.4 of the
Agreement on Agriculture.
VII. INDIA'S EXPORT SUBSIDIES ARE INCONSISTENT WITH ARTICLE 3.1(A)
OF THE SCM AGREEMENT
130. Guatemala claims that India's export subsidies are also inconsistent with Article 3.1(a) of the
SCM Agreement, which prohibits "subsidies contingent, in law or in fact, whether solely or as one of
several other conditions, upon ex port performance […]". India maintains subsidies contingent on
export performance despite the fact that its Schedule of Concessions contains no entitlements for
these subsidies.
131. Guatemala's claim under Article 3.1(a) of the SCM Agreement is largely ba sed on the same
elements already substantiated in Guatemala's claim under Article 9.1(a) of the Agreement on
Agriculture given the similarity of both legal standards.163
132. In response to Guatemala's claim under the SCM Agreement, India has advanced one single
distinct argument – that the disciplines of Article 3 of the SCM do not apply to India at the moment
because India enjoys an additional transition period which allegedly ends in 2025. 164 India's
contention must fail as it is based on a flawed interpretation of Article 27 of the SCM Agreement.
133. India's argument is completely without legal foundation. Its contention is evidently not
supported by the text of Article 27.2 of the SCM Agreement. Article 27.2(a) states that the prohibition
of Article 3.1(a) relating to export subsidies does not apply to "developing country Members referred
to in Annex VII". In contrast to Article 27.2(b), no additional transition period is stipulated in
Article 27.2(a) that would apply once a developing country graduates from Annex VII.
134. The only transition period stated in Article 27.2 is found in Article 27.2(b), which allowed
developing countries in general (i.e. those not listed in Annex VII) to benefit from the non-application
of Article 3.1(a) during a period of eight years which counted from 1995, the date of entry into force
of the WTO Agreement, and was originally intended to expire in 2003. Certain developing countries
sought and received extensions of this original eight-year period, something already envisaged under
Article 27.4. In 2007, the General Council adopted a Decision clarifying that the final transition period
under Article 27.2(b) would expire on 31 December 2015, with no possibility of any further
extension.165 Thus, even if India attempted to some how rely on the eight -year period of
Article 27.2(b), the 2007 Decision of the General Council confirmed that this period expired on
31 December 2015. Consequently, there is nothing in Article 27.2 that could support India's claim to

161 Cost Estimates of movement of food grains to Domestic & International market, Ministry of Railways,
Exhibit IND-23.
162 Government of India, Ministry of Railways, Rates Circular No. 19 of 2018, 31 October 2018, Exhibit
JE-175, Annexure II. See also Guatemala's comment to India's response to Panel's question 82.
163 See Guatemala's first written submission, paras. 310-312.
164 India's first written submission, para. 127.
165 Decision of 27 July 2007 – Article 27.4 of the Agreement on Subsidies and Countervailing Measures,
WT/L/691, circulated on 31 July 2007, sixth recital and paragraph 1(d).
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an additional transitional period for graduating Annex VII countries.
135. As explained by Guatemala in its opening statement at the first substantive meeting,166 India's
proposed interpretation of Article 27.2 is legally untenable. In fact, it was outright rejected by the
panel in India – Export Related Measures (DS541) after examining the same argument that India is
advancing in this dispute.167
136. In conclusion, India's contention that it benefits from an additional eight-year phase-out period
that would end in 2025 must be rejected by this Panel. India became subject to the disciplines under
Article 3.1(a) of the SCM Agreement upon its graduation from Annex VII in 2017. Guatemala's view
is widely supported by Canada168, the European Union169, Japan170, and the United States.171
VIII. GUATEMALA'S REQUEST FOR LEGAL FINDINGS AND RECOMMENDATIONS
137. For the reasons stated in this submission, given that India's Schedule of Concessions does not
contain domestic support commitments, 172 Guatemala requests the Panel to find that India acts
inconsistently with Article 7.2(b) of the Agreement on Agriculture by providing domestic support in
excess of the 10% de minimis level. In the alternative, if the Panel were to find that India has
scheduled commitments of "zero" or "nil", Guatemala requests the Panel to find that India is providing
domestic support in excess of its "zero" or "nil" commitment in violation of Articles 3.2 and 6.3 of
the Agreement on Agriculture.173
138. Guatemala also requests the Panel to find that India's subsidies under the Scheme for
Assistance to Sugar Mills, the Buffer Stock Scheme 2018, the Buffer Stock Scheme 2019, with
operate in conjunction with the MIEQ Orders, and the subsidies under MAEQ Scheme 2019 constitute
export subsidies under Articles 9.1( a) and (c) of the Agreement on Agriculture, for which India did
not undertake reduction commitments, and thus give rise to a violation of India's obligations under
Articles 3.3, 8, and 9.1 of the Agreement on Agriculture; and constitute prohibited export s ubsidies
within the meaning of Article 3.1(a) of the SCM Agreement.
139. Pursuant to Article 19.1 of the DSU, Guatemala requests that the Panel recommend that India
bring its measures into conformity with its obligations under the Agreement on Agriculture and the
SCM Agreement. With respect to the measures that are prohibited s ubsidies under Article 3.1(a)
of the SCM Agreement, Guatemala requests that the Panel, in accordance with Article 4.7 of the
SCM Agreement, recommend that India withdraw its measures without delay within a time -period
specified by the Panel.

166 Guatemala's opening statement at the first substantive meeting, paras. 4.29-4.36.
167 Panel Report, India – Export Related Measures, para. 7.69.
168 Canada's oral statement at the first substantive meeting, paras. 10-11.
169 The European Union's oral statement at the first substantive meeting, para. 22.
170 Japan's oral statement at the first substantive meeting, paras. 10-12.
171 The United States' third party submission, paras. 55-70.
172 Guatemala's first written submission, paras. 109-111; see also India's response to Panel's
question 46.
173 Guatemala's responses to Panel's questions 15(a) and 23(a).
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ANNEX B-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDIA
A. EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION & OPENING
STATEMENT AT THE FIRST VIRTUAL MEETING
I. INTRODUCTION
1. The Government of India has adopted certain policy tools that are aimed to address the
livelihood concerns of India's largely low-income, resource-poor sugarcane farmers. Australia,
Brazil and Guatemala have challenged some of India's Central and State -level measures
concerning sugar and sugarcane in these disputes.
2. India in these submissions will demonstrate that the complainants failed to make a prima facie
case with respect to their claims. India also made requests for preliminary ruling to exclude
certain measures that fall outside the terms of reference of the Panel.
II. FACTUAL BACKGROUND AND THE MEASURES AT ISSUE
3. The principal legislation which forms the basis of the policy tools with respect to sugarcane
and sugar is the Essential Commodities Act, 1955 (" ECA"). Pursuant to the ECA, the Central
Government has passed the Sugar (Control) Order, 1966 and the Sugarcane (Control) Order
in 1966.
4. It is al so relevant to note that the Central Government does not procure or purchase any
quantities of sugar or sugarcane under the ECA or under any other law.
A. Central level measures
(i) Fair and Remunerative Price
5. In 2009, the Central Government amended the Sugarcane (Control) Order, 1966 to introduce
the process of prescribing the Fair and Remunerative Price (" FRP") for sugarcane. Section 3
(1) of the amended Sugarcane (Control) Order specifies that the "price of sugarcane is to be
paid by producers of sugar or their agents for the sugarcane purchased by them". In other
words, sugar mills purchase sugarcane from sugarcane producers/farmers at the FRP. There
is no obligation on the Central Government to either procure the sugarcane or pay the FRP to
sugarcane farmers.
6. The Central Government through the Department of Food and Public Distribution (" DFPD")
announces the FRP through official communications for each sugar season that commences
from the month of October in any given year and runs up -to the month of September in the
immediately following year. The FRP amount may vary depending upon the recovery rate of
the sugarcane.
(ii) Central level measures other than FRP
7. Other than FRP there are certain other Central level measures identified by the complainants
that are implemented by the Central Government. These measures may enable the
government to make payments to sugar mills/ sugarcane farmers:
(a) Scheme for extending production subsidy to sugar mills for the 2015–16 season
(b) Schemes f or Assistance to Sugar Mills for the 2017 –18 and 2018 –19 sugar
seasons
(c) Scheme for Extending Financial Assistance to Sugar Undertakings for the 2013–
14 sugar season
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(d) Scheme for Extending Financial Assistance to Sugar Undertakings for the 2014–
15 and 2018-19 sugar season
(e) Scheme for Creation and Maintenance of Buffer Stock of 2018 –19 and 2019 –
20 (collectively, "Buffer Stock Schemes")
(f) Raw Sugar Export Incentive Scheme for the 2014–15 sugar season
(g) Scheme for defraying expenditure towa rds internal transport, freight, handling
and other charges to facilitate export" for the 2018–19 sugar season
(h) Scheme for providing assistance to sugar mills for expenses on marketing costs
including handling, upgrading and other processing costs and costs of
international and internal transport and freight charges on export of sugar" for
the 2019–20 sugar season ("MAEQ Scheme")
B. State level measures
8. Certain States have enacted laws for the regulation, purchase and supply of sugarcane. Some
States under such laws set an amount that may be different from FRP for the purchase of
sugarcane by sugar mills. Such prices by the relevant States are referred to as the State
Advised Price ("SAP"). Further, some States may have implemented other measures for sugar
mills/ sugarcane farmers.
(i) SAP
9. Certain States may have prescribed SAP by virtue of the powers granted under the relevant
State legislations. However, currently, the States that set an SAP are (i) Haryana, (ii) Punjab,
(iii) Uttarakhand and (iv) Uttar Pradesh. Many other States, in particular Andhra Pradesh,
Bihar and Tamil Nadu no longer set an SAP. Therefore, alleged SAP for the States of Andhra
Pradesh, Bihar and Tamil Nadu do not fall within the Panel's terms of reference
(ii) State level measures other than SAP
10. Other than the SAP, some states in India have implemented certain other programs to allow
the provision of support to sugar mills/ sugarcane farmers. However, it is relevant to note that
many of these measures were no longer in force as of the date of the establishment of the
Panel.
III. REQUEST FOR PRELIMINARY RULING
11. India submits that a number of measures that the complainants have raised or referred to in
their respective requests for estab lishment of the Panel or in their respective first written
submissions fall outside the scope of the Panel's terms of reference.
A. Legal standard with respect to Panel's terms of reference under Article 6.2 and
Article 7.1 of the DSU
12. The Appellate Body in EC – Chicken Cuts has found that the "specific measures at issue" under
Article 6.2 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU") covers only those measures that were "in existence" when a panel was
established and noted as follows: "The term "specific measures at issue" in Article 6.2 suggests
that, as a general rule, the measures included in a panel's terms of reference must be
measures that are in existence at the time of the establishment of the panel."1
13. Therefore, measures that are no longer in existence at the time of the establishment of a
panel do not fall within its terms of reference. As a corollary, measures enacted after the
establishment of a panel are also not within its terms of reference.
B. Measures that fall outside the scope of the terms of reference of the Panel

1 Appellate Body Report, EC – Chicken Cuts, para. 115.
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(i) Measures that have expired prior to the establishment of the Panel

14. All three complainants have referred to or challenged several measures pertaining to sugar
seasons 2014-15 through 2019-20.
15. India submits that the FRP set for the sugar seasons 2014 -15 and 2015-16 has expired and
was not in force at the time of the es tablishment of the Panel. Accordingly, the measures
notifying the FRP for the sugar seasons 2014 -15 and 2015 -16 fall outside the scope of the
Panel's terms of reference and the Panel has no jurisdictional basis to make legal findings with
respect to FRP for the said sugar seasons.
16. Additionally, India also submits that the following Central-level and State-level measures did
not exist at the time of the establishment of the Panel:
(a) Scheme for extending production subsidy to sugar mills for the 2015–16 season;
(b) Scheme for Extending Soft Loan to Sugar Mills for the 2014–15 sugar season;
(c) Raw Sugar Export Incentive Scheme for the 2014–15 sugar season;
(d) SAP with respect to State of Andhra Pradesh including for the sugar seasons 2015-
16 and 2016-17;
(e) SAP with respect to the State of Haryana for the sugar seasons 2014 -15, 2015-16,
2017-18;
(f) SAP with respect to the State of Punjab for the sugar seasons 2014 -15, 2015-16,
2017-18;
(g) SAP with respect to the State of Tamil Nadu for the sugar seasons 2014-15, 2015-
16, 2017-18; and
(h) SAP with respect to the State of Uttar Pradesh for the sugar season 2015-16.
17. Further, the complainants have also challenged purchase tax remission schemes of certain
States, namely, Andhra Pradesh, Bihar, Maharashtra, Telangana, and Uttar Pradesh. India
submits that with the introduction of the Central Government Goods and Service Tax ("GST")
in 2017, the said purchase tax remission has been discontinued with effect from 14 November
2018.
(ii) Measures that were enacted after the establishment of the Panel.
18. All three complainants have challenged the MAEQ Scheme. The MAEQ Scheme was introduced
by the Government of India on 12 September 2019 for the sugar season 2019 -20 (i.e. 1st
October 2019 to 3 0th September 2020). The Panel was established on 15 August 2019.
Therefore, the MAEQ came into existence much after the establishment of this Panel.
IV. RESPONSE TO CLAIMS ON DOMESTIC SUPPORT UNDER THE AOA.
19. The complainants have alleged that India's FRP measures at the federal level and SAP
measures in certain States constitute "market price support" under paragraph 8 of Annex 3
of the Agreement on Agriculture (" AoA") and that India's domestic support for sugarcane is
above the applicable de m inimis level i.e. 10% of the India's total value of sugarcane
production in the relevant year.
20. Australia and Brazil have argued that India has acted inconsistently with Article 7.2 of the AoA
or, in the alternative with Articles 3.2 and 6.3 of the AoA. Guatemala, on the other hand, has
argued that India has acted inconsistently with its obligations under Article 3.2, 6.3 and 7.2(b)
of the AoA.
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A. The complainants have failed to demonstrate that India has acted inconsistently
with its obligations under Articles 3.2 and 6.3 and/or Article 7.2 of the AoA.
21. India submits that the complainants have failed to demonstrate that India has acted
inconsistently with its obligations under Article 3.2 and 6.3 and/or Article 7.2 of the AoA.
Specifically, India submits that the complainants have not met their burden of demonstrating
that the Fair and Remunerative Price/State Advised Price measures qualify as a "market price
support" under Annex 3 of the AoA.
22. Annex 3, or any other provision of the AoA, does not define the phrases "market price support"
or "non-exempt direct payments". That being said, paragraph 2 offers guidance on what may
constitute as a market price support. Paragraph 2 delineates the scope of subsidies under
paragraph 1 of Annex 3. It states that the subsidies include both budgetary outlays and
revenue foregone by governments or their agents. Therefore, a market price support could be
by a government or its agent only if the government or its agent pays the administered price
and procures the specified product at such administered price.
23. India submits that the sugar mills that purchase sugarcane from the farmers at the Fair and
Remunerative Price/State Advised Price are neither government nor its agents as they do not
perform any function of a "governmental character".
B. The prior panel reports relied on by the complainants are either inapplicable or do
not support the views of the complainants.
24. The complainants rely on certain previous panel reports to argue that FRP/SAP qualifies as an
applied administered price ("AAP") under paragraph 8 of Annex 3 of the AoA.
25. India submits that there is no rule of binding precedent or stare decisis within the WTO dispute
settlement process. Without prejudice, India submits that the panel repor ts relied on by the
complainants do not support their claims as these reports concerned substantially different
facts and none of these reports articulated the meaning of "market price support" or that
"market price support" includes payments by private actors.
C. The complainants have not met their burden to demonstrate that the support
through India's other domestic support measures is in excess of the de minimis
limit.
26. The complainants have alleged that India maintains certain other domestic support measures
in addition to the FRP/SAP measures which, when taken into account, further increase the
product specific AMS with respect to sugarcane. These additional measures have been
classified into two categories (i) measures aimed to maintain the price gap between the AAP
and Fixed External Reference Price (" FERP"); and (ii) other non -exempt direct payments/
subsidies.
27. Without prejudice to India's views on characterisation of these measures, the complainants
have not provided any evidence/calcu lation as to how the total support under these other
alleged domestic support measures (i.e. other than the alleged support under FRP/SAP
measures) exceeds the de minimis limit applicable to India.
28. In view of the above, India submits that the complaina nts have failed to make a prima facie
case that India's alleged product-specific domestic support is in excess of the de minimis limit
under the AoA.
V. RESPONSE TO CLAIMS ON EXPORT SUBSIDIES UNDER THE AOA
29. India notes that all three complainants in the present disputes have alleged that India provides
subsidies to its sugar producers that are contingent upon export performance and therefore,
not authorized by the AoA. The measures identified by the complainants in this regard are as
follows:
(a) Funds provided through the following schemes:
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(i) Scheme for extending production subsidy to sugar mills for the 2015 –
16 season;
Scheme for Assistance to Sugar Mills for the 2017–18 sugar season; and
(ii) Scheme for Assistance to Sugar Mills for the 2018–19 sugar season.
(iii) (Collectively, "Schemes for Assistance to Sugar Mills")
(b) Reimbursement of carrying costs of maintaining Buffer Stocks provided through
the Buffer Stock Schemes
(c) Funds towards marketing and transport costs provided under the MAEQ Scheme.
A. Legal standard under the AOA
30. The AoA does not define the term "subsidy". However, it defines the phrase "export subsidies"
as referring to subsidies contingent upon export performance, including the export subsidies
listed in Article 9 of the AoA. Given the express definition of the term "subsidy" under the
SCM Agreement, it may provide relevant context in construing the meaning of the term
"export subsidies" under the AoA. Hence, the twin requirements of: (i) existence of financial
contribution and (ii) conferment of benefit thereby are relevant for existence of a "subsidy" in
context of Article 9 of the AoA – which refers to "export subsidies".
31. In addition to the above definition, footnote 1 of the SCM Agreement, appended to Article 1,
also excludes certain types of revenue foregone by the government from the definition of a
"subsidy". Footnote 1 which refers to Annexes I through III of the SCM Agreement essentially
stipulates the "excess remissions principle". It describes two groups of measures that "shall
not be deemed to be a subsidy", provided they are also in accordance with the Note to Article
XVI of the GATT 1994 and Annexes I to III of the SCM Agreement. These two groups of
measures are:
(a) the exemption of an exported product from the duties or taxes borne by the like
product when destined for domestic consumption; or
(b) the remission of such duties or taxes in amounts not in excess of those which
have accrued.
32. Since the concept of export subsidy under the SCM Agreement offers relevant context for
understanding the term "export subsidy" under Article 9 of the AoA, the interpretation of
"export subsidy" under Article 9 of the AoA cannot be any different. The existence of an export
subsidy under Article 9 of the AoA must t herefore, take into account that the
exemption/remission of duties and taxes levied on like products destined for domestic
consumption cannot be considered export subsidies, to the extent that they do not constitute
an "excess remission". India submits tha t such an interpretation of the term export subsidy
under the AoA does not lead to any conflict between the AoA and SCM Agreement under Article
9 of the AoA.
33. Turning to the specific disciplines governing export subsidies under the AoA, Article 9.1 lists
out those export subsidies that are subject to reduction commitments under the AoA.
However, it is important to note that Article 9.4 of the AoA provides a spec ific allowance to
developing country Members that permits them to provide marketing cost subsidies listed
under Article 9.1(d) and internal transport subsidies listed Article 9.1(e) in connection with
exportation, during the "implementation period".
34. India therefore submits that, as a developing country Member, it is entitled to grant export
subsidies for marketing and transportation costs in accordance with Article 9.4 of the AoA.
B. The complainants have failed to make a prima facie case that India h as acted
inconsistently with its obligations under Articles 3.3, 8, 9.1(a), 9.1(c) or
Article 10, as the case may be.
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(i) The complainants have failed to demonstrate that a subsidy exists within the
meaning of the AoA.
35. First, India submits that the complainants have not met their burden to demonstrate "making"
of a financial contribution such that they can show there is a financial contribution.
Article 1.1(a)(1) provides that "a subsidy shall be deemed to exist if [inter alia] there is a
financial co ntribution by a government . . ." The use of the operative term "is" in
Article 1.1(a)(1) indicates that a subsidy can be said to "exist" only where the government
has actually made a "financial contribution" under the challenged measures.
36. At most, the complainants have provided certain evidence to show that the government had
the legal authority to provide a financial contribution under the challenged measures or the
government made certain budgetary allocations. However, the complainants have not
presented any evidence of the extent to which, if any, a government entity actually makes a
financial contribution pursuant to those measures. Accordingly, the complainants have failed
to demonstrate that a subsidy exists within the meaning of the AoA.
37. Second, India submits that since the complainants have failed to demonstrate the existence
of a financial contribution, they have also necessarily failed to demonstrate existence of a
benefit. The complainants' claim on existence of a benefit is conclusionary and they have failed
to identify any benchmark or make any comparison with a benchmark in a relevant market to
demonstrate the existence of a benefit. Rather, the complainants, with respect to all the
challenged measures have merely assumed that a benefit exists.
38. In view of the above, India submits that the complainants have failed to demonstrate the
existence of a subsidy under Article 9 of the AoA and consequently, have also failed to demonstrate
a breach of Articles 3.3, 8 and/ or 10 of the AoA.
C. The MAEQ Scheme is consistent with India's obligations under the AoA and
SCM Agreement
39. Assuming arguendo that the Panel finds the MAEQ Scheme to fall within its terms of reference,
India submits that for the reasons stated above, the complainants have not met their burden
to demonstrate the existence of a subsidy.
40. Without prejudice to the above, India submits that the MAEQ Scheme falls within the scope of
Articles 9.1(d) and 9.1(e) of the AoA and is therefore, permitted in accordance with Article 9.4
of AoA.
41. Paragraph 3(I)(a) of the MAEQ Scheme envisages payment to sugar mills at a specified rate
towards expenses incurred for the marketing including handling, quality up -gradation,
debagging, re -bagging and other processing costs of sugar. The costs listed herein fall
squarely within the meaning of Article 9.1(d) as specific costs incurred as a part of and during
the process of selling sugar on the export market. In the same vein, paragraph 3(I)(c) of the
MAEQ Scheme envisages payment to sug ar mills at a specified rate towards ocean freight
incurred against shipment from Indian ports to destination countries. Ocean freight is an
expense that falls squarely within the meaning of "international transport and freight"
mentioned in article 9.1(d) . Paragraph 3(I)(c) of the MAEQ Scheme envisages payments at
specified rates towards internal transport and freight charges including loading, unloading,
and fobbing. This again, falls squarely within the ambit of Article 9.1(e).
42. While the complainants, particularly Brazil and Australia, have claimed that the alleged export
subsidies in these disputes do not fall within Articles 9.1(d) and (e)of the AoA, they have failed
to offer any particularised analysis as to why the MAEQ Scheme would not be covered under
Article 9.1(d) and (e) of the AoA. India submits that nothing in the text of Article 9.1(d) and
(e) sets out the manner in which a Member State may grant subsidies under the heads as
specified in these provisions. The complainants have failed to provide any argument/ evidence
to substantiate their claim that MAEQ Scheme does not fall under Article 9.1(d) and 9.1(e).
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D. The DFIA Scheme does not constitute a subsidy under the AoA.
43. India has explained in subsequent paragraphs that the DFIA Scheme is excluded from the
scope of subsidy under the SCM Agreement and accordingly, it does not qualify as a subsidy
under the AoA as well.
VI. RESPONSE TO CLAIMS UNDER THE SCM AGREEMENT
A. Article 3 of the SCM Agreement is not applicable to India
44. At the outset, India submits that Article 3 of the SCM Agreement is not applicable to it.
Article 27 of the SCM Agreement recognises the special & differential treatment accorded to
developing country Members. India submits that Article 27.2(b) of the SCM Agreeme nt
continues to apply to members who graduate from Annex VII(b).
45. Article 27.2(b) provides a phase-out period of 8 years to the developing country Members for
prohibited export subsidies under Article 3. India submits that the eight-year phase-out period
in Article 27.2(b) of the SCM Agreement is to be granted to all Annex VII developing country
Members when they graduate from Annex VII. Such an interpretation is required by the
general rules of treaty interpretation provided in Article 31 of the Vienna Convention of the
Law of Treaties (" VCLT") and is supported by the supplementary means of interpretation
provided in Article 32 of the VCLT.
46. The principle of effectiveness has been read into Article 31(1) of the VCLT and has been
recognised as a cardinal rule of treaty interpretation by all international adjudicatory bodies,
including the WTO Appellate Body. Specifically, a strictly literal interpretation of
Article 27.2(b), in isolation of the scheme of organization of Article 27.2, Annex VII(b), and
other provisions of Article 27, deprives the Annex VII countries of the special treatment
envisaged under Part VII of the SCM Agreement and negates the mandatory language of
Annex VII (b), which requires that a developing country Member that graduates from Annex
VII "shall be subject" to the provisions which are applicable to other developing country
Members "according to" paragraph 2(b) of Article 27, i.e. an eight year phase out period. An
interpretation of Article 27.2 (b) that counts the period of eight years from the entry into force
of the SCM Agreement would lead to a situation wherein developing country Members listed
in Annex VII are not subject to the same treatment.
47. India submits that its interpretation is further supported by Articles 27.4 and 27.5 of the SCM
Agreement and that these provisions must be read harmoniously to give full effect to Article
27 of the SCM Agreement. Article 27.4 of the SCM Agreement accounts for the possibility of
different phase out periods applying to those gr aduating from Annex VII at different times.
This is further supported by Article 27.5 which provides Annex VII countries with an eight -
year phase -out period for export subsidies where a product has reached export
competitiveness.
48. Further, Article 32 o f the VCLT provides for recourse to "[s]upplementary means of
interpretation". Accordingly, India submits that due regard must be given to the negotiating
history of Article 27 of the SCM Agreement to arrive at an interpretation that is both in line
with the object and purpose of the SCM Agreement as well as the principle of effectiveness.
India's interpretation is supported by the Draft Texts formulated by the Chairman of the
Negotiating Group for the SCM Agreement, which demonstrate that the purpose of Article 27
was to allow developing country Members variable periods for phasing out export subsidies
that were in accordance with their specific levels of development.
49. In its submissions, Australia has relied on the panel report in India – Export Related Measures2
to argue that Article 3 of the SCM Agreement applies to India. However, India submits that
the interpretation of Article 27 developed by the panel in that dispute is not binding and has
no legal effect on the present disputes.

2 Panel Report, India – Export Related Measures, para. 7.74.
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B. Without prej udice, Australia and Guatemala have failed to demonstrate that a
subsidy exists within the meaning of the SCM Agreement.
50. Without prejudice to the above, India submits that Australia and Guatemala have failed to
meet their burden to demonstrate the exis tence of a subsidy within the meaning of the SCM
Agreement. Article 1.1 of the SCM Agreement sets out two elements that are required to exist
for a measure to be deemed a subsidy i.e. there is a financial contribution by a government,
or any public body and a benefit thereby is conferred, which have not been demonstrated in
the present case.
51. Additionally, with respect to the MAEQ Scheme, India has demonstrated that the measure is
expressly authorized under the AoA. Accordingly, in view of Article 21.1 of the AoA and
Article 3 of the SCM Agreement, the MAEQ Scheme is outside the scope of the
SCM Agreement.
52. Furthermore, the DFIA Scheme does not constitute a subsidy within the meaning of the
SCM Agreement. Footnote 1 to the SCM Agreement sets out those measures that are not
deemed to be a subsidy i.e., where there is a remission of duties or taxes on exported products
that are not in excess of those accrued. Footnote 1 refers to Annexes I through III of the SCM
Agreement. Annex I of the SCM Agreement pr ovides an illustrative list of export subsidies.
Footnote 1 to the SCM Agreement must be read with paragraphs (g), (h) and (i) of Annex I.
53. Therefore, any remission or drawback of import charges on inputs (that are consumed in the
production of the exported product) not in excess of those levied on imported inputs is not an
export subsidy.
54. The DFIA Scheme provides drawback of import charges (i.e. exemption from payment of basic
customs duty) levied on imported input (i.e. raw sugar) that is used in production of exported
products (i.e. white sugar). Such drawback is not in excess of the basic customs duty levied
on imports of raw sugar and accordingly, the DFIA Scheme does not constitute a subsidy
under the SCM Agreement. For the same reasons, it also does not constitute an export subsidy
under the AoA.
VII. RESPONSE TO CLAIMS ON NOTIFICATION REQUIREMENTS UNDER THE GATT 1994,
THE AOA AND THE SCM AGREEMENT
55. In addition to the substantive claims set out above, Australia has separately also raised claims
with respect to India's notification obligations under various WTO Agreements.
56. As India has explained above, the complainants have failed to establish that the measures at
issue in these disputes meet the definition of a "subsidy" as understood un der the
SCM Agreement as well as the AoA. Consequently, the complainants have also failed
to establish that India was obligated to notify these measures pursuant to Article 25 of the
SCM Agreement and Article XVI of the GATT.
57. With respect to the AoA, India submits that Article 18 of the AoA does not place any obligations
regarding notifications on Members but rather vests the Committee on Agriculture with the
discretion to determine the conduct of the review process including the frequency and form of
notifications. In this regard, India notes that with respect to export subsidies the Committee
on Agriculture uses hortatory language in recommending notifications by Members.
58. Similarly, as India has explained above, the complainants have failed to esta blish that the
measures at issue in these disputes meet the definition of domestic support as understood
under the AoA. Nonetheless India notes that the Committee on Agriculture again, uses
hortatory language making clear that the notification obligations are suggestive in nature and
not a binding obligation.
59. In light of the above, India submits that it has not violated any notification requirements under
the AoA, SCM Agreement or the GATT 1994.
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B. EXECUTIVE SUMMARY OF INDIA's RESPONSE TO THE COMPLAINAN TS' COMMENTS
ON ITS REQUEST FOR A PRELIMINARY RULING
I. Introduction
60. India, in its request for a preliminary ruling, requested that the Panel find certain measures
to be outside the scope of its terms of reference because these measures were not in existence
at the time of the establishment of the Panel as specified under Article 6.2 and 7.1 of the DSU.
61. India notes that the complainants submitted separate comments on India's request for a
preliminary ruling. In terms of paragraph 3(4) of the Working Procedures of the Panel
("Working Procedures "), India chose to present a single response to the comments
submitted by the complainants dated 1 April 2020.
A. Measure versus legal instrument
62. The complainants have sought to create an artificial distinction between a "measure" and a
"legal instrument". This artificial distinction is not only incorrect but also attempts to extricate
a measure from the relevant legal instrument when the two are inextricable.
63. Article 6.2 read with Article 7.1 of the DSU which govern the terms of reference of a panel do
not make any distinction between a measure and a legal instrument. Prior panel reports and
the Appellate Body reports have also used references to measures and legal provisions/
instruments interchangeably.
64. Without prejudice to the above, assuming arguendo, that a m easure is distinct from a legal
instrument, a measure does not have an independent existence in absence of the underlying
legal instrument, and certainly not in the facts of the present disputes. If the measure does
not in itself exist without the legal instrument, the measure cannot be said to be in existence
once the underlying legal instrument expires.
B. Legal standard with respect to Panel's terms of reference under Article 6.2 and
Article 7.1 of the DSU
65. India reiterates its position with respect to the legal standard under Articles 6.2 and 7.1 of the
DSU as it has specified in its first written submission.
66. In EC – Selected Customs Matters 3, the Appellate Body identified two circumstances under
which a measure that was not in existence at the time of the establishment of a panel may be
included within its terms of reference. India will demonstrate that the complainants have failed
to establish that the measures India seeks to exclude from the terms of reference of the Panel
fall within such circumstances.
(i) Measures that have expired prior to the establishment of the Panel
(a) FRP for the sugar seasons 2014-15 and 2015-16 as well as SAP for certain
states.
(b) Scheme for extending production s ubsidy to sugar mills for the 2015 –16
sugar season.
(c) Scheme for soft loan for the 2014 -15 sugar season
(d) Raw Sugar Export Incentive Scheme for the 2014–15 sugar season.
67. India disagrees with the complainants' characterization of the above measure s as simply an
instrument. As India has submitted earlier, there is no distinction between a measure and a
legal instrument.
68. India submits that each of these measures were applicable for a particular sugar season and
the relevant period of such sugar season has already lapsed and that none of the complainants

3 Appellate Body Report, EC – Selected Customs Matters, para. 184.
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have demonstrated the above measures were in existence at the time of establishment of the
Panel or continue to be in effect impairing the benefits of the complainants under a covered
agreement. T he legislative provisions under which these measures are issued are merely
enabling statutes/ laws and their existence cannot be the basis to argue that the identified
measure in itself is in force. In any event, the complainants' issue is not with these legislative
provisions that India has in place; rather the complainants allege that the amount of product-
specific domestic support provided by India is above the de minimis level applicable to India
under the AoA.
(e) Purchase Tax Remission Schemes Andhra Pradesh, Bihar, Maharashtra,
Telangana, and Uttar Pradesh.
69. The complainants have not questioned that the Purchase Tax Remission Schemes have been
subsumed by the GST. The fact that these measures have been subsumed by the GST is itself
evidence of these measures having lapsed.
70. With respect to the Andhra Pradesh Purchase Tax Scheme, the only evidence that the
complainants adduce is the State of Andhra Pradesh's Budget Estimates which reveal that no
amounts were budgeted for this scheme in the Revis ed Estimate for 2017 -18 and for the
Budget Estimate 2018-19. Therefore, the evidence adduced by the complainants confirms that
the Andhra Pradesh Purchase Tax Scheme had expired at the time of the establishment of the
Panel and that no payments were possible thereafter.
(ii) Measures that were enacted after the establishment of the Panel.
(a) The MAEQ Scheme does not fall within the scope of successor instruments
or amendments to instruments, providing for export subsidies for
sugarcane or sugar.
71. The MAEQ scheme, does not amend any measure identified in the complainants' panel
requests. Furthermore, it is also not a "successor" of any of the measures listed in the
complainants' panel requests, as the complainants allege. Merely because the MAEQ has
chronologically been enacted after certain measures as identified in the complainant's panel
requests, the same does not ipso facto designate it as an "amendment" or "successor" thereof,
particularly because it is not of the same essence as such other measures.
(b) The MAEQ Scheme is not of the "same essence" as measures identified in
the complainants' panel requests.
72. The MAEQ Scheme is a separate and distinct measure from those identified by the
complainants in their requests for establishment of a panel. The MAEQ Scheme is distinct from
these measures on at the very least three accounts: (i) the nature of assistance provided; (ii)
eligibility criteria for obtaining assistance; and (iii) the amount of assistance provided and the
methodology to determine such amount.
73. The Schemes for Assistance to Sugar Mills and the Buffer Stock Schemes provide assistance
based on the amount of cane crushed and costs of maintaining buffer stocks, respectively.
While the MAEQ Scheme has been introduced specifically with the view of providing WTO -
consistent payments to offset transport and marketing costs incurred by sugar mills carrying
out the export of sugar. Furthermore, eligibility requirements under all these schemes differ
greatly. Lastly, the amount of assista nce provided and the methodology to determine such
amount under the MAEQ Scheme varies greatly from those under the schemes identified by
the complainants in their requests for establishment of a Panel.
(c) Inclusion of the MAEQ Scheme within the Panel's terms of reference is not
necessary to secure a positive solution to the dispute.
74. India considers that the inclusion of the MAEQ Scheme within the Panel's terms of reference
is neither necessary nor warranted for the purposes of securing a positive sol ution to the
dispute. Assuming any of the measures alleged to constitute export subsidies in the present
dispute are however found to be inconsistent with the covered agreements, measures taken
thereafter that share some similar characteristics may be appropriately addressed during the
stage of compliance.
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C. EXECUTIVE SUMMARY OF INDIA's SUBMISSIONS ON NOMINATION/ APPOINTMENT
OF THE CHAIRPERSON TO THE MPIA
75. On 09 June 2020, the Chairperson of the Panel, Mr. Thomas Cottier issued a communication
to the parties to the dispute citing the Code of Conduct on Rules and Procedures Governing
the Settlement of Disputes, disclosing his nomination by Switzerland to serve as an arbitrator
under the Multi Party Interim Appeal Arbitration Arrangement (" MPIA"). Mr. Cottier invited
the parties to raise any questions in the context of his participation in the MPIA arbitrator
selection process and register their views, if any.
76. As India is not a party to the MPIA, it sought to receive certain clarifications on the MPIA
arbitrator selection process by its letter dated 18 June 2020. In the said communication, India
also invited the complainants (who are parties to the MPIA) to offer responses to the questions.
India did not receive a response from the complainants.
77. On 28 August 2020, India once again requested clarifications from the complainants. Based
on the responses provided by the complainants on 15 September 2020 and assurances
provided by the chairperson through various letters, India communicated on 30 September
2020 that it did not take issue with Mr. Cottier's function as chairperson of the Panel despite
his nomination, participation in the selection process, and subsequent appointment as an MPIA
arbitrator.
D. EXECUTIVE SUMMARY OF INDIA's SUBMISSIONS ON THE CON DUCT OF A VIRTUAL
MEETING
78. On 02 October 2020, the Panel communicated to the parties that in light of the continuing
health risks caused by the COVID-19 outbreak and the restrictive immigration measures taken
by Switzerland and other countries in response thereto, it appeared unlikely to the Panel that
it would be able to hold face-to-face meetings in the near future, with all the parties and the
third parties physically present at the WTO premises. The Panel then proposed two options
for conducting the first substantive meeting, i.e. either conducting two substantive meetings
in a hybrid format (i.e. partially through video conferencing a) or a single substantive meeting
in a possible hybrid format.
79. India disagrees with the proposals of the Panel. While the DSU allows panels a certain margin
of discretion, it does not permit panels to unilaterally alter fundamental aspects of the dispute
settlement procedures, in the absence of the agreement of the parties to the dispute. A right
to an oral hearing in physical presence of the parties and the Panelists is a fundamental due
process right which cannot be truncated by the Panel unless the parties to the present disputes
agree.
80. Further, India considers that the conduct of a hearing through video confe rencing does not
effectively take into account the geographical and technological disparities and limitations of
all the participants in the present disputes. The present disputes concern various measures
that are implemented by several different States in India necessitating the participation of, as
well as coordination with, several State Government representatives and officials scattered
across the country. In the event that video conferencing is adopted, the varied distribution of
delegates across the country, each with varied infrastructural, institutional and technological
support, would not permit a uniform and meaningful level of engagement from all participants.
These geographical and logistical difficulties would significantly impair India's abilit y, as a
developing country respondent, to prepare and present its case. Further there is no way to
guarantee the confidentiality of the proceedings in such a format.
81. Accordingly, video conferencing can in no manner substitute a substantive meeting whic h
requires physical presence of the parties and the Panelists. India emphasises that the objective
of prompt settlement of disputes contained in article 3.3 of the DSU cannot be interpreted so
as to compromise the due process rights guaranteed to all parties, which in the present case
would be irrevocably undermined if the opportunity for a physical substantive meeting in the
presence of all parties is denied.
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E. EXECUTIVE SUMMARY OF INDIA's RESPONSES TO THE PANEL'S QUESTIONS PRIOR
TO THE FIRST VIRTUAL MEETING
RESPONSE TO PANEL QUESTION 15
82. Articles 3.2 and 6.3 of the AoA apply to Members that have undertaken commitments under
Section I of Part IV of their Schedules. Article 7.2(b) of the AoA applies to Members that have
no Total AMS commitments in Part IV of their Schedule. Therefore, where there exists no Total
AMS commitment (i.e. a Member has not undertaken any commitment), Article 7.2(b) of the
AoA would be the appropriate framework to determine such Member's compliance with
domestic support obligations. India submits that a finding under Article 3.2 and 6.3 of the AoA
is not necessary in the event, the Panel concludes that India has acted inconsistently with
Article 7.2(b) of the AoA.
RESPONSE TO PANEL QUESTION 18 (a)
83. The term "subsidy" under paragraph 1 of Annex 3 includes "market price support". This is
evident from the phrase "each basic agricultural product receiving market price support, non-
exempt direct payments, or any other subsidy not exempted from the reduction commitment".
The usage of the phrase "any other" before subsidy supports the view that market price
support is also a subsidy.
RESPONSE TO PANEL QUESTION 18 (c)
84. The second sentence of paragraph 8 of Annex 3 to the AoA stipulates that any budgetary
payment (other than the payment towards AAP) to maintain the gap between the AAP and
FERP shall not be included in calculation of AMS. These budgetary payments may be towards
costs of buying-in or storage. The second sentence does not elucidate when a mark et price
support may be said to exist within the meaning of Annex 3 of the AoA.
RESPONSE TO PANEL QUESTION 35
85. Articles 9.1(d) and (e) of the AoA do not restrict a Member with respect to the manner in
which any payments are made for the purposes as identified in these provisions. To the extent
that the payments made are not in excess of the costs incurred, there is no requirement that
the payments be equal to the costs incurred or be provided as a reimbursement.
86. The complainants speculate that the amount of the subsidy may not correspond to the actual
expenses on transportation, freight and marketing without adducing any evidence to support
their statement. If the complainants consider these payments to be in excess of the costs
incurred, they should have adduced relevant evidence. In absence of evidence, the statements
by the complainants are mere speculation and conjecture.
RESPONSE TO PANEL QUESTION 37
87. To the extent that Article 9.1 (a) of the AoA may be argued to include revenue foregone as a
direct subsidy, the same must also be necessarily informed by the scope of the term revenue
foregone which excludes certain types of revenue foregone, namely remission of duties and
taxes on exported products not in excess of those accrued from the scope of the term subsidy.
India therefore submits that to the extent that the Panel considers Article 9.1 (a) of the AoA
to include revenue foregone, the same cannot include the remission of duties or taxes, which
are not in excess of those levied or accrued.
F. EXECUTIVE SUMMARY OF INDIA's RESPONSES TO THE PANEL'S QUESTIONS
FOLLOWING THE FIRST VIRTUAL MEETING
RESPONSE TO PANEL QUESTION 47
88. In India's view, "buying-in" costs refer to costs associated with the procurement of the product
concerned (other than the AAP) incurred or paid by a government. These are not to be included
in the AMS calculation.
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RESPONSE TO PANEL QUESTION 48 (a)
89. The second sentence of paragraph 8 of Annex 3 has no bearing on India's arguments that a
market price support only exists where a government or its agent pays the AAP and procures
the product. The second sentence of paragraph 8 only seeks to rightfully exclude certain
payments made by a government towards costs associated with implementing an AAP, from
the AMS calculation. The second sentence offers two examples of such costs i.e. costs
associated with buying-in or storage.
RESPONSE TO PANEL QUESTION 48 (b)
90. Paragraph 8 in no way clarifies when a market price support can be said to exist within the
meaning of Annex 3. In particular, this also does not clarify who must pay the AAP. This issue
is addressed under paragraph 2 read with paragraph 1 of Annex 3. India's arguments, in its
prior submissions, are not concerned with the methodology provided in paragraph 8 of Annex
3. The issue of calculation of market price support and the methodology for such calculation
will arise only after determining that a market price support exists. The complainants have
not demonstrated the existence of a market price support in these disputes.
RESPONSE TO PANEL QUESTION 48 (c)
91. A Member's Schedule may not be relevant in defining "market price support". The issue that
the Panel needs to address is whether a "market price support" can be said to exist if a
government or its agents do not purchase a concerned product from the agricultural producers
and pay or promise to pay a price for the product. This issue is addressed under paragraph 2
read with paragraph 1 of Annex 3 of the AoA.
RESPONSE TO PANEL QUESTION 52
92. While the definition of subs idy under the SCM Agreement may provide relevant context to
construe the meaning of "export subsidies" under Article 9 read with Article 1(e), this does
not mean that the definition of "subsidy" under the SCM Agreement is interchangeable with
the usage of the term "subsidy" under the AoA in all contexts. The scope and purpose of both
these agreements are different, and a governmental action that may qualify as a "subsidy"
under the SCM Agreement may not necessarily always qualify as subsidy under the AoA.
Further, measures that do not qualify as an "export subsidy" under the SCM Agreement cannot
be qualified as an "export subsidy" under Article 9 of the AoA
RESPONSE TO PANEL QUESTION 58
93. The DFIA Scheme provides drawback of import charges (i.e. exemption from payment of basic
customs duty) levied on imported input (i.e. raw sugar) that is used in production of exported
products (i.e. white sugar). Such drawback is not in excess of the basic customs duty levied
on imports of raw sugar, and accordingly, the DFIA Scheme does not constitute a subsidy
under the SCM Agreement.
94. The duty-free imported input, i.e. raw sugar, is physically incorporated in exported products,
i.e. white sugar and falls under the scope of footnote 61 of Annex II and also footnote 1 of
the SCM agreement.
G. EXECUTIVE SUMMARY OF INDIA'S SECOND WRITTEN SUBMISSION
I. Response to Claims on Domestic Support
A. Response to the claims on domestic support
(i) Market price support is a subsidy which does not include private expenditures.
95. The complainants have failed to demonstrate that the alleged domestic support measures i.e.
FRP and SAP measures constitute market price support under Annex 3 of the AoA. Contrary
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to the complainants' assertions, the text, context as well as object and purpose of the AoA do
not support the complainants' views.
96. Paragraph 1 of Annex 3 identifies two specific forms of domestic support (i.e. "market price
support" and "non-exempt direct payments") which are then followed by a general phrase "or
any other subsidy . . .". The phrase "or any other subsidy" only means that in addition to the
two subsidies expressly identified in paragraph 1, i.e. market price support and non -exempt
direct payments, other subsidies not exempted from reduction c ommitments shall also be
included in the AMS calculation.
97. Since the phrases "market price support" and "non-exempt direct payments" under paragraph
1 are followed by the phrase "or any other subsidy . . .", it clearly implies that "market price
support" or "non -exempt direct payments" are of the same kind or nature as "any other
subsidy . . ." Therefore, market price support is a subsidy under paragraph 1 of Annex 3.
98. Paragraph 2 of Annex 3 delineates the scope of subsidy. Specifically, it does no t include
measure involving private expenditures. Paragraph 2 identifies the givers of the subsidies.
The phrase "by governments or their agents" limits the categories of givers to: (i)
governments; or (ii) their agents. Therefore, any measure falling within the scope of the term
"include" can only be in the nature of governmental expenditure. Paragraph 2 of Annex 3 does
not include private expenditures. Unlike the provisions of Article 9.1(c) of the AoA which
pertains to payments financed by virtue of gove rnmental action, whether or not a charge on
the public account is involved, paragraph 2 of Annex 3 limits subsidies that include both
budgetary outlays and revenue foregone by governments or their agents. The usage of the
phrases "by virtue of governmental action" and "whether or not a charge on the public account
is involved" in one of the provisions of the AoA, and the omission of such wide language in
another provision clearly establishes that paragraph 2 of Annex 3 does not include private
expenditures.
99. Since FRP/ SAP measures do not involve government expenditures, they do not qualify as
subsides and therefore, consequently they do not constitute market price support under Annex
3 of the AoA.
(ii) Response to the complainants' arguments on ordinary meaning, context, object
and purpose of the AoA, second sentence of paragraph 8 of Annex 3 and India's
supporting tables.
100. Contrary to the complainants' assertions, the text, context as well as object and purpose of
the AoA do not support the complainants' views. Article 6 alone is not determinative of what
is disciplined under the AoA. Article 6 read with paragraph 1 and paragraph 2 of Annex 3
identifies the scope of domestic support that goes into the calculation of AMS. Paragraph 2,
which uses the p hrase "[s]ubsidies under paragraph 1", by its plain reading is linked to
paragraph 1. Therefore, Brazil's ostensible "ordinary meaning" approach, without taking into
account the significance of paragraph 2 of Annex 3, is incomplete and thus incorrect.
101. Guatemala's interpretation of the term "include" ignores the import of the term "both"
immediately following the term "include". Even if the term "include" were to be interpreted
overlooking the term "both" (which will be erroneous), an unlisted type of subsidy must have
a "commonality" with those specifically listed i.e. budgetary outlays and revenue foregone.
Since budgetary outlays and revenue foregone relate to government expenditures or public
accounts, any other measure falling within the scope of the term "include" must also have the
characteristics of governmental expenditure or expense from a public account.
102. The second sentence of paragraph 8 of Annex 3 only seeks to exclude certain budgetary
payments from the calculation of AMS and does not undermine India's views on paragraph 2
of Annex 3. All that the second sentence of paragraph 8 seeks to do is exclude certain
budgetary payments that are made to maintain the gap between the AAP and the FERP i.e.
implement the market price support architect ure. The second sentence of paragraph 8 also
provides certain illustrations of such budgetary payments such as costs towards "buying -in"
or "storage". The second sentence of paragraph 8 rightfully excludes such payments made by
a government towards the additional costs from the calculation of the AMS. The exclusion of
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such costs for "buying -in" or "storage" from the AMS calculation has no bearing on India's
arguments that a market price support only exists where a government or its agent pays the
AAP and procures the product.
103. A Member's Schedule is not relevant in defining "market price support". The question as to
when a market price support can be said to exist within the meaning of Annex 3 must be
determined in the light of the specific provisions of the AoA. As India has stated above, market
price support is a subsidy under paragraph 1 of Annex 3 and paragraph 2 of Annex 3 clearly
sets out what subsidies under paragraph 1 comprise.
B. Response to the claims on export subsidy under the AoA and the
SCM Agreement
(i) Article 3 of the SCM Agreement does not apply to India.
104. India reiterates that Article 3 of the SCM Agreement is not applicable to it for the reasons
stated in its First Written Submission. India emphasizes that the interpretation of Art icle 27
developed by the panel in India – Export Related Measures is not binding and has no legal
effect on the present disputes. The panel report in India – Export Related Measures has not
been adopted, and is in fact, under appeal before the Appellate Body. The specific issue of the
panel's interpretation of Article 27 of the SCM Agreement is also under appeal. Therefore,
reliance on this panel report is inconsequential.
(ii) Actual transfers of funds are required for a subsidy to exist under the AoA and
SCM Agreement.
105. In context of the AoA, Article 9.1(a) refers to "subsidies" which requires both (i) a financial
contribution and (ii) conferment of a benefit. Indeed, a "benefit" does not exist in the abstract
but must be received and enjoyed by a beneficiary or a recipient. Logically, a "benefit" can be
said to arise only if a person, natural or legal, or a group of persons, has in fact received
something. In the case of grants (which are what have been alleged to exist by the
complainants in the present disputes), an intended beneficiary or recipient could not have "in
fact received the grants" unless the grants are actually transferred to such intended
beneficiary or recipient. Since benefit cannot exist in abstract and a beneficiary must receive
something (i.e., grants), a subsidy (receipt of a benefit being an integral part of a subsidy)
cannot exist unless there is an actual transfer of funds.
106. Turning to the SCM Agreement, the complainants do not engage with the text of the provisions
of Article 1.1(a)(1) i.e. "there is a financial contribution . . ." and thus fail to respond to India's
arguments set out in its First Written Submission.
107. Instead, the complainants' sole argument is based on the phrase "potential direct transfer of
funds" under Article 1.1(a)(1)(i) of the SCM Agreement and the observations in a few panel
and Appellate Body reports.
108. The complainants' attempt to equate "potential transfer of direct funds" under Article 1 of the
SCM Agreement with "direct transfer funds" is w holly misplaced. They conflate two distinct
concepts. Article 1.1(a)(1)(i) of the SCM Agreement identifies two forms of governmental
practice: (i) one that involves direct transfer of funds (e.g. grants, loans, and equity infusion);
and (ii) the other that involves potential direct transfer of funds (e.g. loan guarantees). The
two are not the same. The second category, by the plain text of the provision, is a financial
contribution in itself. For example, if a government guarantees a loan, this in itself is a financial
contribution. The creditor need not default, and the guarantor need not fulfil the obligations
of the guarantee by paying off the loan to qualify as a "financial contribution".
Article 1.1(a)(1)(i) identifies the act of guaranteeing (which may involve a transfer of funds
in the future and hence, potential direct transfer of funds) as a financial contribution. This is
different from the cases involving "direct transfer of funds".
109. Indeed, there cannot be a "transfer" unless the funds are actually transferred to the recipient.
The term "transfer" means "move, take or convey from one place, person, situation, time of
occurrence etc., to another"; "transmit"; "give or hand over from one to another"; "convey or
make over (title, right, or property) by deed or legal process". Meanings that are relevant in
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

the context of Article 1.1(a)(1)(i) are "convey from one person to another", "transmit", or
"give or hand over from one to another". Therefore, "a direct transfer of funds", by the
ordinary meaning of the term "transfer" requires transmission of funds or giving or handing
over of funds from a giver to a recipient.
110. None of the complainants have alleged that India's alleged export subsidy measures constitute
a "potential direct transfer of funds", rather the complainants argue that the challenged
measures are a "direct transfer of funds" in the form of grants. In fact, Guatemala even goes
as far as to state that a "grant" is understood as a transaction in which "money or money's
worth is given to a recipient…", thereby implying that a transfer is in fact, effectuated.
111. Therefore, to the extent that evidence has not been placed before this Panel with respect to
actual disbursement of funds with respect to a challenged measure, it can be concluded that
the complainants have failed to prove that there is a financial contribution with respect to that
measure.
(iii) The complainants have not demonstrated that the challenged measures grant a
benefit to sugar mills.

112. The complainants have failed to demonstrate the second element of existence of a subsidy
i.e., that a benefit is conferred. The complainants, on one hand, claim that India's sugar and
sugarcane market is heavily distorted; and, on the other, also argue tha t a benefit is
automatically conferred on the sugar mills in the very same market which they claim to be
distorted. Both these claims cannot be true at the same time. The complainants' claim that
India's sugar and sugarcane market is heavily distorted requ ires them to identify an
undistorted market separate from the market in which the transaction between the
government and sugar mills is executed. It also requires that they then demonstrate that the
sugar mills in the allegedly distorted market are better-off or receive a competitive advantage
compared to what they would have received had the transaction between the government and
the sugar mills occurred in such undistorted market. The complainants have not done so.
113. The complainants' arguments also i gnore the cost of availing such alleged financial
contribution. The complainants claim that the prices of sugarcane (i.e., raw material for sugar)
is exorbitantly high in India. By their own claim, it is evident that the cost of production of
sugar for the sugar mills is very high making them uncompetitive in the export market. The
sugar mills undertake "loss-making transactions" in the export market to receive the alleged
financial contribution from the government. In such a case, a benefit cannot be automatically
deduced as claimed by the complainants without taking into account the cost to the sugar
mills. Therefore, the complainants have failed to demonstrate the existence of a benefit.
(iv) The DFIA scheme does not constitute a subsidy under the AoA an d the
SCM Agreement.
114. India does not agree with Australia's conclusion which is based on an incorrect understanding
of the requirements of footnote 1 read with Annex 1 (i) of the SCM Agreement. While the DFIA
Scheme may provide remission of import char ges on a post -export basis, such remission is
nevertheless provided commensurate to inputs already consumed in exported products. In
other words, an exporter is only entitled to claim an exemption on import duty for future
imports of raw sugar to the extent of the raw sugar that was in fact consumed in the production
of exported white sugar. Further, there exists a verification mechanism to ensure that only
the specific inputs actually consumed in the export product are allowed duty free import under
DFIA. Thus, the DFIA scheme provides a remission of import charges already paid in respect
of inputs consumed in the production of exported products in the form of duty-free import of
future raw sugar. Nothing in the text of footnote 1 or paragraph (i) of Annex 1 of the SCM
Agreement requires that remissions on import duty cannot be granted on a post-export basis.
H. EXECUTIVE SUMMARY OF THE OPENING STATEMENT IN THE SECOND VIRTUAL
MEETING
115. For the most part, the complainants raise common flawed arguments in their second written
submissions except for a few variances and some limited new, but equally flawed arguments.
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116. The so -called negotiating history documents relied by the complainants make an upfront
disclosure: (i) these documents were prepared by the Chairman pursuant to his own
responsibility; (ii) the documents are not exhaustive; and (iii) they are without prejudice to
participants' positions on these or other issues which may also need to be considered further.
These disclosures are revealing of t he relevance that the Panel may accord to the cited
negotiating history documents relied upon by the complainants.
117. In any event, the cited negotiating history documents neither support the complainants' views
on paragraphs 1 and 2 of Annex 3, nor do they dislodge India's reading of these paragraphs.
Paragraphs 5 and 6 of the Chairman's Note are analogous to paragraphs 10 and 13 of Annex
3 respectively and not to paragraph 2 of Annex 3. Indeed, under paragraph 10 and 13, under
certain circumstances one may use budgetary outlays (which includes revenue foregone) to
measure/ calculate the subsidy in question. Paragraphs 5 and 6 of the Chairman's Note do not
say anything more in this respect. India has not disputed this. Paragraphs 5 and 6 of the
Chairman's Note do not state that paragraph 2 of Annex 3 does not apply to market price
support or that market price support is not a subsidy under paragraph 1.
118. Brazil's reading of the phrase "[S]ubject to the provisions of Article 6" in paragraph 1 of Annex
3 is flawed. The phrase "[S]ubject to the provisions of Article 6" only means that the AMS
calculation must exclude those items expressly exempted under Article 6. It does not mean
that there are no other implied or express exclusions in Annex 3. Nor does it diminish the
plain meaning of paragraph 1 which excludes measures that are not subsidies within the
meaning of paragraph 2 of Annex 3.
119. Brazil selectively places emphasis on the word "any" and again commits the same error of
reading provisions in an isolated fashion. Article 7.2(a) cannot be read in a manner to ignore
the clear and unambiguous text of paragraphs 1 and 2 of Annex 3. Indeed, Article 7.2(a) itself
also recognises that measures may be exempt from reduction commitments by reason of any
other provision of the AoA. Paragraphs 1 and 2 of Annex 3 are provisions of the AoA which do
not include the FRP and SAP measures that involve private expenditures.
120. With respect to the claims on MAEQ Scheme, the complainants have not discharged their
burden of proof of demonstrating the affirmative of their claims.
121. The complainants' claims with respect to MAEQ Scheme is based on Article 3.3 read with
Article 9.1 of the AoA. Article 3.3 of the AoA reads as follows:
"Subject to the provisions of paragraphs 2(b) and 4 of Article 9, a Member shall
not provide export subsidies listed in paragraph 1 of Article 9 in respect of the
agricultural products or groups of products specified in Section II of Part IV of
its Schedule in excess of the budgetary outlay and quantity commitment levels
specified therein and shall not provide such subsidies in respect of any
agricultural product not specified in that Section of its Schedule." (Emphasis
supplied)
122. Article 3.3 expressly cross -refers to Article 9.4 of the AoA. Article 9.4 allows developing
country Members to adopt measures that, subject to certain conditions, may be inconsistent
with Article 3.3 read with Article 9.1 of the AoA during a transition phase i.e., the
implementation period. This is similar to th e relationship between Articles 2.2 and 5.7 of the
SPS Agreement that the Appellate Body examined. Article 9.4 is also a special and differential
treatment provision designed to address particular needs and conditions of developing country
Members in line with the objectives of the AoA. Article 9.4 is critical to enable the developing
country Members to have an equitable share in the benefits of trade liberalisation,
development and economic growth. Article 9.4 is, therefore, an autonomous right, and not a
typical "exception" or "defense" such as Article XX of the GATT 1994. 4 Contrary to what the
complainants seem to argue, India has not invoked a defense or exception.
123. Therefore, the complainants bore the burden to demonstrate that the MAEQ Scheme is
inconsistent with Article 9.4. They did not do so in their first written submission. Paragraph

4 Appellate Body Report, EC - Hormones, para. 104.
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3(1) of the Working Procedures required the parties to submit their first written submission
containing facts of the case and their arguments before the first substantive meeting. Indeed,
Paragraph 3(1) of the Working Procedures required the complainants to set out its case in
chief, including a full presentation of the facts on the basis of submission of supporting
evidence, during the first stage. Guatemala did not make any mention of Article 9.4 in its first
written submission. Australia made a cryptic statement that its "claims in this dispute do not
concern export subsidies of these [Article 9.4] kinds". Brazil simply stated that it "does not
consider that the exemptions provided by Article 9.4 are relevant in this dispute". The cryptic
statements by Australia and Brazil fell far below the standard of elaboration containing an
explicit articulation5 of its claims that MAEQ Scheme did not fulfil conditions of A rticle 9.4. In
fact, they found it simply not relevant. This failure is critical in view of the due process
considerations as observed by the Appellate Body. 6 Given the complainants have failed to
discharge their burden, the burden of proof did not shift to India. India, therefore, does not
bear any burden to demonstrate that the MAEQ is covered under Article 9.4 read with Articles
9.1(d) and 9.1(e) of the AoA.
124. The complainants, in their second written submission, have made delayed claims on the MAEQ
Scheme not complying with the requirements of Article 9.1(d) and 9.1(e). This does not rectify
the critical flaw of demonstrating prima facie case in the first insta nce i.e., the first written
submissions and undermines due process rights of India.
I. EXECUTIVE SUMMARY OF INDIA'S CLOSING STATEMENT IN THE SECOND VIRTUAL
MEETING
125. India notes that the complainants' positions are fraught with inconsistencies. At time s, they
chose to emphasize on the absence of a word, at other occasions they find such omission
irrelevant; at one point they find so -called negotiating history document relevant (India has
demonstrated that those documents say nothing more than what we know from Annex 3), in
some other context, they ignore it as a "labyrinthine" process; at one point they find paragraph
2 of Annex 3 as a "calculation methodology" that applies only to paragraph 13, at another
point they find that paragraph 2 applies to both paragraphs 10 and 13; at one point they find
non-exempt direct payment may be subsidies but does not follow that it must be subsidies,
at another point they discover the syntax of paragraph 1 of Annex 3 and find non -exempt
direct payment as a subsidy.
126. This is a classic Hobbesian "self -interest" at display here. In other words, rules ( read treaty
text) do not matter, what matters is what the complainants want. If a position suits the
complainants, they must take such a position, no matter how inconsistently that is taken, and
no matter what is written in the rules. How did the complainants get caught in this position?
It is because the complainants first made an a priori conclusion that the FRP/ SAP measures
are equal to AAP and they then started findi ng support from the treaty text. A treaty
interpreter does not interpret the treaty to reach a predetermined conclusion. It is for this
error that the complainants have struggled to go to every nook and corner of the AoA, and
yet failed to find support for their arguments.
127. If the Panel were to agree with India's arguments, the Panel will only report what the text of
the AoA unambiguously states. The complainants have, on the other hand, urged the Panel to
ignore the text and rather consider systemic co ncerns. For complainants, India's
interpretations must be rejected (despite the clear textual provisions) and rather the treaty
must be read what ought to be the reading or else there will be a "loophole". India will address
if there is any loophole.
128. But first, the complainants are encouraging the Panel to engage in "normativism" and India is
deeply concerned with that, as this will set the Panel on a dangerous path. WTO panels do not
and must not supply or omit words from a treaty. If that is allowed , it will lead to a slippery
slope where the panels will usurp the powers of the Ministerial Conference and the General
Council who have exclusive authority to adopt interpretations of the covered agreements or
negotiate and arrive at new rules on subject matters that are not currently addressed under
the covered agreements. Indeed, there are no agreed conceptions of what "policy

5 Appellate Body Report, EC – Tariff Preferences, para. 113.
6 Appellate Body Report, EC – Tariff Preferences, para 113.
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considerations" or "systemic concerns" constitute among the WTO Membership. Invocation of
such undefined, unagreed and vague conc epts into treat interpretation will defeat the very
objective of a treaty - which is to achieve certainty based on the consent of the sovereign
parties to such a treaty. It will lead to "legislation" or revisions in the treaty text by entities
who simply do not have such authority.
129. Further, what Australia refers to as a "loophole", India finds it as a delicate balancing exercise.
If a few wealthier countries can enjoy implementing blue box subsidies which are product -
specific and not decoupled with pro duction, equally, it is only fair that countries at a lower
stage of economic development have some level of flexibility within their policy space to
address their particular needs. It is this balance which the AoA has sought to achieve by
excluding measures such as the FRP/ SAP measure from the scope of AMS calculation.
J. EXECUTIVE SUMMARY OF INDIA's RESPONSES TO THE PANEL'S QUESTIONS
FOLLOWING THE SECOND VIRTUAL MEETING
RESPONSE TO PANEL QUESTION 61
130. While the SCM Agreement provides relevant context for interpreting the existence of a subsidy
under the AoA, this does not mean that the definition of a subsidy under the SCM Agreement
is interchangeable with the usage of the term subsidy under the AoA in all contexts.
131. In the present disputes, the is sue at hand is when a measure may qualify as "market price
support" within the meaning of Annex 3 of the AoA. The phrase "income or price support"
appearing in Article XVI of the GATT 1994 and Article 1.1(a)(2) of the SCM Agreement has
not been defined the rein. These agreements do not offer any guidance on when income or
price support may be said to exist. Nor do these agreements provide any calculation
methodology or identify the ingredients of measuring "income or price support". Therefore,
the phrase "income or price support" appearing in Article XVI of the GATT 1994 and Article
1.1.(a)(2) of the SCM Agreement is not relevant in addressing the issue of when a market
price support can be said to exist within the meaning of Annex 3 of the AoA.
132. Annex 3 of the AoA unambiguously sets out the scope of a measure that may be classified as
market price support i.e. in paragraphs 1 and 2 of Annex 3. Hence these are relevant for
addressing the issue of when a measure may be classified as a market price support u nder
Annex 3 of the AoA.
133. Without prejudice, India notes that in any case the phrase "income or price support" in
Article 1.1(a)(2) of the SCM Agreement or in Article XVI of GATT 1994 does not include
measures that do not involve government expenditure.7
RESPONSE TO PANEL QUESTION 63 (b)
134. India reiterates that India's Schedule is neither relevant in interpreting what constitutes
market price support under the AoA, nor does it define what is market price support. Indeed,
the Appellate Body in Chile — Price Band System8 noted that the Schedule of one Member,
and even the scheduling practice of a number of Members, is not relevant in interpreting the
meaning of a treaty provision. Therefore, India does not consider that the above question is
relevant for the Panel to resolve the present disputes
RESPONSE TO PANEL QUESTION 81
135. India notes that the question of whether there is excess payment is now moot as the
complainants, to begin with, have not discharged their burden with respect to the MAEQ
Scheme in their first written submissions.

7 L/1160, adopted on 24 May 1960, 9S/188, 191, para. 11 (noting that "[I]n such a case there would be no loss
to the government, and the measure would not be governed by Article XVI. . .").
8 Appellate Body Report, Chile — Price Band System, para. 272.
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136. Guatemala's arguments on the textual differences between Article 3.3 of the AoA and
Article 2.2 of the SPS Agreement are inconsequential. In fact, the panel's observations in EC
- Approval and Marketing of Biotech Products (US) despite the usage of the phrase "except as
provided in paragraph 7 of Article 5", the panel did not find Article 5.7 of the SPS Agreement
as an "exception" or "defense".9
137. India also does not accept that the complainants have discharged their burden of proof as
Brazil seeks to argue India's choice to offer its comments on merits of the MAEQ Scheme does
not automatically shift the burden which the complainants did not discharge to begin with.
RESPONSE TO PANEL QUESTION 86 (a) & (b)
138. The DFIA can be transferred from one entity to another. The transferability of the DFIA has
no relevance to the Panel's analysis under footnote 1 read with Annex I of the SCM Agreement.
India reiterates that the DFIA allows for a remission on import charges that is equivalent to
what has already been paid on inputs which have in fact, been consumed in the process of
production of exported products. This falls squarely within the requirements of footnote 1 of
the SCM Agreement.
RESPONSE TO PANEL QUESTION 88
139. India's Foreign Trade Policy read with the Handbook of Procedures addresses the issue of any
excess remission.
140. Specifically, an applicant seeking to avail of the DFIA is required to make an application in a
prescribed form i.e. Form ANF -4G, including details of the items exported, details of items
sought to be imported, details of other materials to be used in the export product and sought
to be imported etc.
141. Further, paragraph 4.56 of the Foreign Trade Policy Ha ndbook of Procedures requires the
original DFIA holder to maintain a true and proper account of consumption and utilisation of
duty free imported/domestically procured goods against each authorisation as prescribed in
Appendix 4H which are sent to the Regional Authority concerned along with a request for bond
waiver/redemption/discharge of export obligation/transferability to be vetted along with
verification by a practicing accountant (as licensed by the relevant regulatory body).
142. Thereafter, accordin g to para 4.53 read together with 4.49(f), the Regional Authority
compares the relevant portion of Appendix 4H with that of norms allowed in Authorisation(s)
and actual quantity consumed /utilised imported against Authorisation(s) in the beginning of
licensing year for all such Authorisations redeemed in the preceding licensing year. In this
verification process, in case it is found that the Authorisation holder has consumed a lesser
quantity of inputs than imported, the Authorisation holder shall be liable to pay customs duty
on the unutilized value of imported material, along with interest thereon as notified, or affect
additional export within the export obligation period.
143. Therefore, the DFIA Scheme does not allow any excess remission. An exporter is only entitled
to claim an exemption on import duty for future imports of raw sugar to the extent of the raw
sugar that was in fact consumed in the production of exported white sugar.
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ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Canada 104
Annex C-2 Integrated executive summary of the arguments of China 108
Annex C-3 Integrated executive summary of the arguments of Costa Rica 110
Annex C-4 Integrated executive summary of the arguments of El Salvador 113
Annex C-5 Integrated executive summary of the arguments of the European Union 116
Annex C-6 Integrated executive summary of the arguments of Japan 119
Annex C-7 Integrated executive summary of the arguments of the United States 122
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ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA

I. PARAGRAPH 2 OF ANNEX 3 OF THE AOA DOES NOT REQUIRE THE ADMINISTERED
PRICE TO BE PAID BY A GOVERNMENT OR ITS AGENT FOR SUPPORT TO BE
CONSIDERED "MARKET PRICE SUPPORT"
1. First, Canada addresses India's reliance on paragraph 2 of Annex 3 of the AoA to support its
argument that the Fair and Remunerative Price and State Advised Price measures are not "market
price support" because they are not paid by a government or its agents. 1 In Canada's view, India's
reliance on paragraph 2 of Annex 3 to support this position is misplaced.
2. Paragraph 1 of Annex 3 of the AoA identifies three types of domestic support that must be
included in a product-specific AMS: "market price support", "non-exempt direct payments" and "any
other subsidy not exempted from the reduction commitments". Paragraphs 2 through 13 of Annex 3
provide guidance on how to calculate support in each of these categories.
3. Canada shares India's view that market price support is a form of subsidy.2 Thus, the guidance
provided by paragraph 2 of Annex 3 is applicable to market price support.
4. However, paragraph 2 of Annex 3 does not limit the types of support considered "subsidies"
to budgetary outlays and revenue foregone by governments or th eir agents. The use of the term
"include" in paragraph 2 indicates that "budgetary outlays" and "revenue foregone" by governments
or their agents are examples of the types of support that would be considered "subsidies" under
paragraph 1, rather than an exhaustive list.
5. Thus, paragraph 2 does not provide a basis to conclude that the administered price must be
paid by a government or its agent for support to be considered "market price support" as India
argues.
II. RELATIONSHIP BETWEEN THE SCM AGREEMENT AND THE AOA
6. Second, Canada addresses the issue of the order of analysis of export subsidy claims brought
under both the SCM Agreement and the AoA, and the role of the text and jurisprudence arising out
of the SCM Agreement in interpreting obligations found in the AoA.
7. With respect to the order of analysis, Canada considers that the Panel's analysis must start
with the obligations found in the AoA before considering those in the SCM Agreement for measures
that are covered by both Agreements.
8. Article 21.1 of the AoA establishes that the obligations in the AoA supersede the obligations
found in other WTO multilateral trade agreements, including the SCM Agreement. It provides: "The
provisions of GATT 1994 and of other Multilateral Trade Agree ments in Annex 1A to the
WTO Agreement shall apply subject to the provisions of this Agreement". This hierarchy rule is also
reflected in Article 3.1 of the SCM Agreement, which prohibits import substitution subsidies and
export subsidies "[e]xcept as prov ided in the Agreement on Agriculture". Appellate Body
jurisprudence also recognizes the primacy of the AoA when examining the WTO -consistency of an
export subsidy for agricultural products.3
9. As a result, the Panel must first analyze claims of export subsidization for agricultural products
under the AoA, and then under the SCM Agreement if necessary.

1 India's first written submission, paras. 61-63.
2 See India's response to Panel question No. 18, p. 13.
3 Appellate Body Reports, Canada – Dairy (Article 21.5 – New Zealand and US), para. 123; US – Upland
Cotton, paras. 570.
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10. With respect to the role of the SCM Agreement in interpreting obligations found in the AoA,
Canada considers that, in addition to the context provided by other provisions of the AoA, the
SCM Agreement may provide relevant context to interpreting these obligations. In particular,
Article 1 of the SCM Agreement may provide relevant context for interpreting the term "subsidy" in
the AoA.4 However, the use of Article 1 of the SCM Agreement as context must not result in a conflict
between the provision being interpreted and other provisions of the AoA.
III. EXPORT SUBSIDIES DISCIPLINES UNDER ARTICLE 3.1(A) OF THE SCM AGREEMENT
NOW APPLY TO INDIA
11. Third, Canada addresses India's claim that export subsidy disciplines under Article 3.1(a) of
the SCM Agreement do not apply to it.
12. In its first written submission, India argues that it is not subject to export subsidy disciplines
because it is still covered by the eight-year period of Article 27.2 of the SCM Agreement. 5 India's
view is that the eight-year period started on the date of its graduation from Annex VII(b).6
13. Canada disagrees with India's interpretation.7 The ordinary meaning of Article 27.2(b) of the
SCM Agreement is clear: the eight -year exemption period began on the date of entry into force of
the WTO Agreements, that is, on 1 January 1995, and ended eight years later, on 1 January 2003.
14. Pursuant to Annex VII and Article 27.2, if a developing Member graduated from Annex VII
before 1 January 2003, it would have become subject, upon graduation, to the special and
differential treatment of non-Annex VII developing Members; as set out in Article 27.2(b), it would
have had until 1 January 2003 to phase out export subsidies. However, because India gradua ted
from Annex VII after the expiry of the eight -year period, this phase -out mechanism is no longer
applicable. As a result, India became subject to disciplines on export subsidies under Article 3.1(a)
of the SCM Agreement upon its graduation from Annex VII in 2017.
IV. THE RESPONDENT HAS THE BURDEN TO PROVE THAT ITS MEASURES MEET
REQUIREMENTS TO BE EXEMPTED FROM THE CURRENT TOTAL AMS
15. Fourth, Canada addresses the question of whether it is the complainant or the respondent
who bears the burden to demonstrate that a measure should be excluded from a Member's current
total AMS.
16. In response to question 26(b) from the Panel, Brazil and Australia submit that the respondent
bears the burden to prove that certain measures should be excluded from the respondent's current
total AMS.8 To the contrary, India claims that since the complainants have made an affirmative claim
of market price support, they bear the burden to prove each element thereof, including exclusions.9
17. In Canada's view, where the complainant claims that the domestic support of the respondent
exceeds its permissible level of support under the AoA, it is up to the respondent to raise any
exemption and to demonstrate that the measures meet the applicable criteria for that exemption.
18. This interpretation is consistent with general Appellate Body guidance on the burden of proof
in WTO dispute settlement proceedings. The Appellate Body has held that the burden of proof rests
upon the party, whether the complainant or the respondent, who a sserts the affirmative of a
particular claim or defense.10

4 See Panel Report, US – FSC, para. 7.150; Appellate Body Report, Canada – Dairy, para. 87.
5 India's first written submission, paras. 132 and 145.
6 Ibid. para. 133.
7 See Canada's third-party submission, paras. 26-38.
8 Brazil's response to Panel question No. 26, para. 41; Australia's response to Panel question No. 26,
paras. 65 and 68.
9 India's response to Panel question No. 26, p. 18.
10 Appellate Body Reports, US – Wool Shirts and Blouses, p. 14; US – Tuna II (Mexico), para. 216; see
also Panel Reports, EU – Footwear (China), para. 7.10; China – Electronic Payment Services, para. 7.5; China
– Broiler Products, para. 7.6; US – Carbon Steel (India), para. 7.7; US – Countervailing Measures (China),
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

19. If the respondent considers that certain measures targeted by the complainant should be
exempted from its current total AMS, the respondent bears the burden to demonstrate that the
measures at issue meet the exemption criteria. The respondent bears this burden when it claims an
exemption arising in Annex 2 of the AoA or when it claims that the measure is a budgetary payment
made to maintain the price gap within the meaning of paragraph 8 of Annex 3.
20. Requiring the complainant to prove that certain exemptions do not apply, as proposed by
India, would be tantamount to requiring the complainant to demonstrate the negative of a claim.
This is inconsistent with applicable jurisprudence.
V. NOTIFICATION REQUIREMENTS
21. Finally, Canada considers that the notification requirements contained in the WTO Agreements
are important to ensuring transparency 11 and the effective monitoring of the implementation of a
WTO Member's commitments. Notificat ions submitted by WTO Members to the relevant
WTO committees support and underpin the proper operation of these committees. Therefore,
WTO Members must, in good faith, notify their measures in accordance with their WTO obligations.
22. With respect to the content of these obligations under the AoA, Canada considers
that: (1) Article 18 of the AoA imposes a mandatory obligation on WTO Members to notify their
measures; and (2) Members must in good faith notify all domestic support in favour of agricultural
producers, including market price support, under Article 18 of the AoA.
A. Article 18 of the AoA imposes a mandatory obligation on WTO Members to
notify their measures
23. Although Article 18 is not explicit in setting out a mandatory obligation on WTO Mem bers to
notify their measures, a careful reading of its provisions nonetheless establishes that a mandatory
obligation to notify exists.
24. First, Articles 18.1 and 18.2 require the Committee on Agriculture to review Members' progress
in the implementatio n of their commitments in part on the basis of Members' notifications. If
Members were not required to submit notifications, there would be little basis on which to conduct
this review and therefore little ability for the Committee on Agriculture to meet i ts obligation under
Article 18.1.
25. Further, Article 18.3 provides that "[i]n addition to the notifications to be submitted under
paragraph 2, any new domestic support measure, or modification of an existing measure, for which
exemption from reduction is claimed shall be notified promptly". 12 Use of the phrase "to be
submitted" suggests that notifications under paragraph 2 are mandatory. Moreover, use of the term
"shall" clearly indicates that Members have a mandatory obligation to notify new or modified
measures for which they are claiming an exemption from reduction commitments. It stands to reason
that if Members have a mandatory obligation to notify these new or modified measures, they would
also have a mandatory obligation to notify measures that are subject to reduction commitments.
26. Finally, if the notification of a Member's measures was not mandatory, there would be no basis
for another Member to consider that those measures "ought to have been notified" in Article 18.7.
Interpreting Article 18 as only recommending that Members notify their measures under the AoA
would render Article 18.7 inutile.
B. Notifications under Article 18 of the AoA must include "all domestic support
in favour of agricultural producers", including market price support
27. Canada considers that, under Article 18 of the AoA, Members must in good faith notify "all
domestic support in favour of agricultural producers", including market price support. This obligation
is established through a careful reading of the provisions of the AoA.

11 See Appellate Body Report, Brazil – Aircraft, para. 149.
12 AoA, Article 18.3. (emphasis added)
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

28. Under Articles 3.1 and 3.2 of the AoA, Members commit not to provide domestic support or
export subsidies in excess of the levels specified in their Schedules. Members' commitments
concerning domestic support apply to "all its domestic support measures in favour of agricultural
producers" except those exempt from reduction commitments. 13 "Domestic support measures in
favour of agricultural producers" include modifications to existing measures as well as new measures
that are not exempt from reduction commitments.14 As all non-exempt domestic support measures
in favour of agricultural producers form part of a Member's commitments under the AoA, a Member
must notify these measures under Article 18.
29. Annex 3, paragraph 1 specifies that market price support is a type of non -exempt domestic
support.15 Market price support must therefore al so be included in a Member's notifications under
Article 18.
30. Only when Members submit timely and high quality notifications concerning all non -exempt
domestic support in favour of agricultural producers, including market price support, can the
Committee on Agriculture properly review whether there has been progress on the implementation
of commitments negotiated under the Uruguay Round reform programme.

13 AoA, Article 6.1.
14 Ibid. Article 7.2(a).
15 Ibid. Annex 3, para. 1.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA*

I. INTRODUCTION
1. China thanks the Panel for this opportunity to present its views on the proper legal
interpretation of certain key provisions of the Agreement on Agriculture in relation to the applied
administered price and the constitution of market price support. In particular, China would like to
offer some cla rification on the findings of the Panel in China –Agricultural Producers cited by the
parties.
II. CLAIMS REGARDING APPLIED ADMINISTERED PRICE AND CONSTITUTION OF
MARKET PRICE SUPPORT
2. In their submissions, Australia, Brazil and Guatemala complained tha t India maintains a
variety of market price support and other product-specific support measures for sugarcane farmers,
and that the sum total of such domestic support exceeds the de minimis level as applicable to India
under the Agreement on Agriculture. I n particular, they argued that India has provided excessive
market price support through its Fair and Remunerative Price ("FRP") and State Advised Price
("SAP") programs, and the prices set by Indian government under those programs are applied
administered prices for the purposes of the Agreement on Agriculture.
3. India argued, however, that the measures at issue do not quali fy as market price support
measures and should not be included in its AMS calculation. Specifically, India argued that in light
of paragraph 2 of Annex 3 of the Agreement on Agriculture, a market price support could be by a
government or its agent, only if the government or its agent pays t he administered price and
procures the specified product at such administered price. 1 Since the sugar mills that purchase
sugarcane from the farmers at FRP and SAP are neither government nor its agents, those programs
do not qualify as a subsidy by the go vernment or its agents under Annex 3 and consequently as a
market price support.2
4. China does not hold any position on either the facts of th ese disputes or whether India's
measures constitute market price support. However, China has concerns on the misleading summary
by India of the fact and legal finding of China – Agricultural Producers.
5. In paragraph 69 of its first written submission, India seems to suggest that the interpretation
of the phrase "applied administered price" by the Panel in China – Agricultural Producers was
somehow informed by, or conditioned on, the alleged context of that case, i.e. source of finance for
purchase and ownership of the purchased products. However, in that dispute, the parties have never
argued and the Panel has never mentioned the source of finance or ownership of purchased products
in interpreting the term "applied administered price". To the contrary, the Panel
in China – Agricultural Producers adopted the ordinary meaning approach presented by both parties,
and found that the "applied administered price" is the price set by the government at which specified
entities will purchase certain basic agricultural products.3
6. That being said, we agree that in China – Agricultural Producers, the Panel's finding on the
connection between "applied administered price" and "market price support" is limited. It basically
found that applied administered price is a constituent element of a market price support measure, 4
and the removal of the applied administered price means the expiration of the market price support
measure.5 However, that panel did not address the question of what would constitute as "market

* China requested that its oral statement serves as its executive summary.
1 India’s First Written Submission, para. 62.
2 India’s First Written Submission, paras. 63-64.
3 Panel Report, China –Agricultural Producers, para. 7.177.
4 Id., para. 7.173.
5 Id., para. 7.80.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

price support" or whether the applied administered price is the sole prerequisite to a market price
support measure. These are key questions this Panel may need to address.
III. CONCLUSION
7. China thanks the Panel for its attention and looks forward to answering any questions the
Panel may have.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF COSTA RICA

I. CHARACTERIZATION OF THE FRP/SAP AS DOMESTIC SUPPORT MEASURES UNDER
THE AOA
1. The complainants have argued that India maintains a variety of measures at the federal and
state-level that constitute domestic support for sugarcane, and that total sum of such domestic
support exceeds the de minimis level, as applicable to India under the AoA. In particular, they allege
that India's Fair and Remunerative Price ("FRP") for sugarcane and the State Advised Price ("SAP")
applied by certain Indian States, constitute "market price support" under paragraph 8 of Annex 3 of
the AoA.
2. India ha s claimed that the complainants have failed to demonstrate that India has acted
inconsistently with its obligations under article 3.2 and 6.3 and/or article 7.2 of the AoA, since the
complainants have not met their burden of proof of demonstrating that the FRP/SAP measures
qualify as a "market price support" under Annex 3 of the AoA.1
3. In particular, India considers that as neither Annex 3 nor any other provision of the AoA define
the concept of "market price support", paragraph 2 of such Annex do offe r guidance on what may
constitute a market price support and that in accordance with that provision, in order for a particular
measure to qualify as a "market price support", such measure shall include both budgetary outlays
and revenue forgone by "governments or their agents". India argues that since the sugar mills that
purchase sugarcane from the farmers at FRP/SAP are neither the government nor its agents, the
FRP/SAP cannot therefore be characterized as a "market prices support" under Annex 3 of the AoA.
India therefore concludes that since the complainants have not taken this issue into consideration,
they have failed to demonstrate that the FRP/SAP constitute market price support under the AoA.
4. Costa Rica is of the view that in order to assess if a Member has acted inconsistently with its
obligations under articles 3.2, 6.3 and/or 7.2 of the AoA by providing domestic support that exceeds
its de minimis levels, it is necessary that the challenged measures (in this case the FRP/SAP) be
characterized as domestic support measures in the first place. Only then could a possible
quantification of these measures be made.
5. The Parties to this dispute agree that there is not a definition in the AoA of what constitutes
domestic support and/or market price support. As stated above, India relies on the guidance
provided by other provisions such as paragraph 2 of Annex 3 of the AoA to present its views on how
these terms should be interpreted and/or assessed.
6. Costa Rica notes that complainants have provided a detailed description of the FRP/SAP in
their written submissions and that their characterization of these measures as domestic support
measures (in this particular case as market prices support) relies mostly on the particular
characteristics of the measures themselves and how they would fit within the required elements to
quantify the market price support, as established by paragraph 8 of Annex 3 of the AoA. In doing
so, they have also relied on previous panel reports, in particular on China – Agricultural Producers,
Korea – Various Measures on Beef, and China – GOES.
7. While Costa Rica agrees with India that there is no rule of binding precedent or stare decisis
within the WTO dispute settlement process, Costa Rica believes that previous WT O panel reports
may provide valuable guidance in assessing the characterization of the measures in question, in
particular given the lack of definitions under the AoA.
8. Costa Rica believes that the characterization of the FRP/SAP as domestic support me asures
would depend on different elements, which if taken together, would provide the necessary guidance
to determine if there has been a violation of articles 3.2, 6.3 and/or 7.2 of the AoA.

1 India's first written submission, para 59.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

II. INTERPRETATION OF ARTICLE 1.1 (A) (1) OF THE SCM AGREEMENT AND ITS
RELATIONSHIP WITH THE EXPORT SUBSIDY CLAIMS UNDER ARTICLE 9 OF THE AOA.
9. The Complainants allege that India provides subsidies to its sugar producers that are
contingent upon export performance and since India has no reduction commitments for ex port
subsidies, it is not entitled to provide these types of subsidies for any agricultural product. Therefore,
by maintaining export subsidies for sugar, India has acted inconsistently with its obligations under
Articles 3.3, 8, and 9.1 of the Agreement of Agriculture.2
10. India considers that complainants have failed to make a prima facie case that India has acted
inconsistently with its obligations under Articles 3.3, 8, 9.1 or Article 10, since the complainants
have failed to demonstrate that a subsidy exists within the meaning of the AoA.
11. Costa Rica notes that all Parties to the dispute seem to agree that one of the elements required
as part of the legal standard applicable to Article 9.1 (a) of the AoA is the existence of "direct
subsidies"3, and that given the absence of the terms "subsidies" and "direct subsidies" within article
9.1 (a) of the AoA, the SCM Agreement would be relevant in the interpretation and application of
that provision of the AoA, in particular article 1.1 of the SCM Agre ement, which defines what a
subsidy means.
12. Costa Rica believes that article 1.1 of the SCM Agreement is in fact relevant in the
interpretation and application of article 9.1 (a) of the AoA. However, and without prejudice of the
complainants' views r egarding the actual implementation of the challenged measures under their
export subsidies complaints, Costa Rica disagrees with India's interpretation that the requirement
established in article 1.1 (a)(1) of the SCM Agreement requires a demonstration tha t the financial
contribution has "actually" been made, in order to assess the existence of a subsidy.
13. According to India, the complainants have not provided any evidence of actual financial
contribution with respect to the challenged measures and therefore have failed to demonstrate the
existence of a financial contribution, and hence the existence of a subsidy within the meaning of
article 9 of the AoA.4
14. In Costa Rica's view, India's interpretation of Article 1.1 (a) (1) of the SCM Agreement g oes
beyond the same rules of interpretation that India relies on when it responds to the claims regarding
export subsidies under the SMC Agreement.5
15. According to Article 31 (1) of the Vienna Convention, a treaty is to be interpreted in good faith
in accordance with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its objective and purpose.
16. Costa Rica believes that the main purpose of the SCM Agreement is to discipline the use of
subsidies that may h ave adverse effects on international trade. An interpretation as the one
suggested by India will go against the object and purpose of the SCM Agreement since it would have
the effect of placing and extraordinary burden on WTO Members that wish to challeng e subsidies
under the SCM Agreement and/or the AoA. In fact, India's position implies that a measure is
inconsistent with the SCM Agreement and the AoA only if actual financial contribution, income or
price support has taken place. Under this reading, a subsidy scheme contained in the law could not
be challenged if actual government assistance has not been given in practice. Thus, to challenge a

2 Guatemala's first written submission, para 242, Australia's first written submission, para 251, Brasil's
first written submission, inter alia, para 233. Australia also alleges as an alternative, a violation of articles 8
and 10.1 of the AoA.
3 India's first written submission, para 100, Guatemala's first written submission, para 262-266,
Australia's first written submission, paras 256, 261-272, Brazil’s first written submission, paras 190-272.
Costa Rica believes that the full legal standard applicable to article 9.1 (a) of the AoA, is the one set up by the
panel report in Canada – Dairy, para 7.38 that requires the existence of the following four elements: a) the
existence of “direct subsidies, including payments in kind”; b) provided by “governments or their agenciesº; c)
“to a firm, to an industry, to producers of an agricultural product, to a cooperative or other association of such
producers, or to a marketing board”; and d) which are ºcontingent on export performance”.
4 India's first written submission, para 109.
5 India's first written submission, Section VII, paras 129-145.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

subsidy, any complainant would have to demonstrate that a disbursement of funds have actually
taken place.
17. The ordinary meaning of the word "is" in this given context simply refers to the existence of
a measure "within the territory of a Member" . Ascribing the temporal meaning that India gives to
this term would deprive the SCM Agreement of its object and purpose.
18. It is worth recalling that the complainants have challenged different measures as part of this
dispute settlement procedures and that according to past WTO rulings, "…any act or omission
attributable to a WTO Member can be a measure of that Member for purp ose of dispute settlement
proceedings."6
19. This interpretation would be in line with the same language expressed in Article 3.3 of the
DSU, which refers to situations in which a Member considers that any benefits accruing to it directly
or indirectly under the covered agreements are being impaired by measures taken by another
Member.
20. Certainly, the export subsidies challenged by the complainants would qualify as measures
attributable to India, and these measures could potentially impair the benefits accruing to them
directly or indirectly unde r the AoA, regardless of the fact that the export subsidies have been
"actually" provided, as India suggests.
III. APPLICABILITY TO INDIA OF ARTICLE 3.1 OF THE SMC AGREEMENT.
21. Costa Rica notes that both Guatemala and Australia have claimed that certai n measures
applied by India related to export subsidies are inconsistent with India's obligations under
Articles 3.1 (a) and Article 3.2 of the SCM Agreement.
22. In response to these claims, India argues that article 3 of the SCM Agreement is not applicable
to India since it considers that, upon graduating from Annex VII (b) of the SCM Agreement in 2017,
India is entitled to the eight year phase out period of export subsidies provided to other developing
countries under Article 27.2 (b) of the SCM Agreement.
23. Costa Rica disagrees with India's interpretation. In Costa Rica's view, Article 27.2 (b) of the
SCM Agreement is clear in that the eight year phase out period was counted from the date of entry
into force of the WTO Agreement, and this period initially expired in 2003. Therefore, India already
was entitled to the same treatment that "other developing country Members" were entitled to under
that provision.
24. In fact, taking into consideration that many developing countries had to phase out their export
subsidies by 2003 and that India was able to maintain them until it graduated under Article 27 (b)
of the SCM Agreement in 2017, India actually was provided a more favourable treatment that these
"other developing country Members".
25. Costa Rica takes note that this same issue has already been addressed in India – Export
Related Measures, as pointed out by Australia in its first written submission.7 Even though the panel
report in that case has not yet been adopted by the DSB, Costa Rica shares the views and conclusion
expressed by the panel in their report that "…Article 27 no longer excludes India from the application
of Article 3.1 (a) of the SCM Agreement."8

6 Appellate Body Report, US – Corrosion Resistant Steel Sunset Review, para. 81.
7 Australia's first written submission, para. 539.
8 Panel report, India – Export related measures, para. 7.74.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX C-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF EL SALVADOR*

I. INTRODUCTION
1. El Salvador is participating in the present dispute given its systematic interest in application
of the General Agreement on Tariffs and Trade 1994 and the Agreement on Agriculture. It considers
that any domestic support for the production of agricultural products outside legally established
limits, as well as export subsidies for agricultural products, distort international trade. The former
undermine commitments to market access made by Member countries, giving advantages to their
domestic industries that compete with imports, while the latter lead to unfair competition vis-à-vis
third-party countries.
2. El Salvador considers that sugar and sugarcane are strategic products for industries such as
its own, hence the need to ensure legal certainty and guarantee the principle of transparency in the
trade rules on which commercial operators of this type of product depend. That is why our country
considers its participation in this procedure to be timely.
3. El Salvador will express its opinion on the preliminary objection brought by India and will then
refer to the main complaints brought by the complaining parties. Lastly, it will present its conclusions
regarding the alleged measures and their non-compliance with the covered agreements.
II. FACTUAL BACKGROUND
4. In accordance with the complaining parties' contentions, India provides domestic support
measures for sugar and sugarcane through a "fair and remunerative price" granted at the federal
level and a "State advised price" at the state level, as well as o ther support measures to maintain
the gap between prices and other non-exempt payments.
5. Furthermore, India provides principally export subsidies for sugar in the form of direct
payments, according to the complaining parties, through different modalities , including direct
payments, direct payments related to regulated stocks, among others, all contingent on export yield.
6. The measures adopted by India have affected commercial sugar and sugarcane operations in
Brazil, Guatemala and Australia. On 15 August 2019, this led to the formation of the Panel.
7. On 19 March this year, India submitted a written reply to the allegations made in the present
dispute by the complaining parties, which included the requirement of a preliminary objection for
the procedure, stating that some of the measures alleged by the Parties had since had lapsed and
for that reason, are outside the scope of the Panel's terms of reference.
III. PRELIMINARY OBJECTION
8. With regard to the objection made by India, El Salvador considers it relevant to revert to what
was established in the Panel China – Domestic support for agricultural producers, to the extent that
"instead of assessing whether the underlying legal instrume nts were formally terminated, a panel
has to examine whether the challenged measure still affects the operation of the covered
agreements".1 The foregoing implies that the termination of a legal instrument is not the same as
the termination of a measure.
9. Hence the reason why El Salvador considers that the Panel would be entitled, as part of its
mandate, to examine the instruments implemented by India with regard to the sugar - and

* El Salvador requested that its written submission, which was in Spanish, serves as its executive
summary.
1 Panel report, China – Domestic support for agricultural producers, WT/DS511/R, para 7.70.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

sugarcane-related measures; as well as to verify the effect of said measu res on the operations of
the complaining parties.
IV. ALLEGED MEASURES
10. The complaining parties have indicated that India has taken the following measures:
- domestic support for sugar and sugarcane;
- export subsidies for sugar and sugarcane; and
- failure by India to notify the above-mentioned support and subsidies.
11. Based on the facts mentioned above, India has taken a series of measures which, according
to the complaining parties, run contrary to the Agreement on Agriculture, the Agreement on
Subsidies and Countervailing Measures (SCM Agreement) and the transparency obligations
stipulated in the covered agreements and in GATT 1994.
V. LEGAL BASIS
5.1 Domestic Support
12. In accordance with the provisions of the Agreement on Agriculture, specifica lly Articles 3.2,
6.3, 7.2(b) and 8, w here no Total AMS commitment exists in a Member's Schedule, the Member
shall not provide support in excess of the relevant de minimis level.
13. Considering that India is a developing country, in accordance with Article 6.4(b) of the
Agreement on Agriculture, the de minimis percentage for product-specific domestic support is 10%
of the value of total agricultural production.
14. Therefore, when domestic support is provided, it should be under the terms of the Agreement
on Agriculture. Consequently, El Salvador considers that all WTO Members should guarantee
compliance with the obligation set out therein.
5.2 Export Subsidies
15. The complaining parties contended that India grants export subsidies within the meaning of
Article 9.1(a) of the Agreement on Agriculture as they are direct subsidies provided by governments
or their agencies to a firm or to an industry, to producers of an agricultural product, to a cooperative
or other association of such producers or to a marketing board, contingent on export performance.
16. Similarly, the complaining parties allege that India grants exports subsidies within the
meaning of Article 9.1(c) of the Agreement on Agriculture as these are payments for the export of
sugar financed through governmental measures.
17. The complaining parties thus add that the subsidies conditional on exports granted by India
are prohibited subsidies by virtue of the provisions of Article 3 of the SCM Agreement.
18. El Salvador maintains that it is imperative for Members to refrain from granting prohibited
subsidies in accordance with the provisions of Article 3 of the SCM. Therefore, these export subsidies
are incompatible with the Article 9.1 of the Agreement on Agriculture.
VI. CONCLUSIONS
El Salvador observes that India did not establish any domestic subsidy reduction commitment in
Section I, Part IV of the Schedule of Concessions, hence by virtue of the provisions of Article 6.4 of
the Agreement on Agriculture, the measures in question cannot exceed the de minimis level of 10%.
El Salvador also wishes to indicate that India did not establish any export subsidy reduction
commitment in Section II, Part IV of its Schedule of Concessions related to sugar or sugarcane which
would allow it to make use of export subsidies.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

El Salvador considers that the measures taken by India related to domestic support and export
subsidies for sugar and sugarcane, should be implemented in accordance with the provisions of the
WTO Agreements. The importance of fulfilling the obligation to notify each Member of the measures
implemented in its country, based on the principle of transparency, should be underscored.
Based on the foregoing, El Salvador requests that the Panel review carefully the scope of the
complaints in the light of this communication and those submitted by Guatemala, Brazil and Australia
in their respective briefs as complaining parties.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX C-5
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION*

1. INTRODUCTION
1. The European Union is grateful for this possibility to express its views.
2. INDIA'S PRELIMINARY RULING REQUEST
2. On 9 November 2020 the Panel communicated to the Third parties its decision as regards
India's preliminary request to the effect that certain measures where falling outside the Panel's
terms of reference.
3. The European Union's share the Panel's conclusi on and therefore it does not consider it
appropriate to deal with this matter any further.
3. OBSERVATIONS OF THE EUROPEAN UNION
1. MARKET PRICE SUPPORT AND APPLIED ADMINISTERED PRICE
4. The European Union would like to briefly reiterate its position according to which the notion of
applied administered price (AAP), which is one of the elements for the calculation of market price
support, does not require payments (or revenue foregone) from the government or its agent.
5. India's opposite view tends to limit the scope of the AoA's domestic support commitments to
support granted in the form of subsidies (or in any event measures that require a budgetary outlay
or revenue foregone by the government or its agent).
6. The preamble of the AoA, however, refers to the objective of achieving substantial progressive
reductions in agricultural support, and not only progressive reduction of subsidies for agricultural
production. Hence, the objective of the AoA is broader than that of limiting domestic subsidies.
Subsidies are just a means of granting support but do not exhaust the means by which government
can support agricultural production.
7. The text of paragraphs 1 and 2 of Annex 3 of the AoA (entitled Domestic Support: Calculation
of the Aggregate Measurement of Support) suggests that domestic support does not require
budgetary outlays or revenue foregone by governments or their agents. Paragraph 1 of Annex 3 of
the AoA lists three forms of domestic support: market price support, non -exempt direct payments,
or any other subsidy not exempted from the reduction commitments. That listing shows that there
are three different forms of domestic support, which should have different characteristics; otherwise
there would be no reasons for using three different expressions to identify them. Paragraph 2 refers
to just one of those forms of domestic support and clarifies that "subsidies" under paragraph 1
include both budgetary outlays and revenue foregone by governments or their agents.
8. Moreover, according to paragraph 1 of Annex 2 of the AoA, domestic support measures which
provide support through a publicly-funded government programme (including government revenue
foregone) not involving transfers from consumers may be exempt from the reduction commitments.
Hence, when t he support is not provided through a publicly -funded government programme the
domestic support measure is not exempt from the reduction commitments, but it is still a form of
domestic support falling within the purview of the AoA.
9. Furthermore, paragraph 8 of Annex 3 states that Market Price Support shall be calculated
using the gap between a fixed external reference price and the applied administered price. The
second sentence of that paragraph adds that:

* The European Union requested that its oral statement serves as its executive summary.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

Budgetary payments made to maintain this gap, such as buying -in or storage costs,
shall not be included in the AMS.
10. Hence, where there are budgetary outlays the price support calculation should only take into
account the difference between the AAP and the FRP. This clarification strongly confirms that
budgetary outlays are not an essential element of market price support measures.
11. Finally, the WTO jurisprudence has constantly confirmed that the applied administrative price
does not require budgetary outlays or revenue foregone from the government or its agent. The EU
refers to the Panel Reports in China - Agricultural producers and in Korea – Various Measure on Beef,
which have been discussed in its written submissions.
12. The EU is aware that there is no formal rule of precedent under WTO law. However, that does
not imply in any way that continuity and consistency in the jurisprudence is less important.
Continuity and consistency in the jurisprudence serve to provide security and predictability t o
WTO Members and the multilateral trading system as a whole, which is key to the attainment of the
objectives mentioned in the preamble of the Marrakesh Agreement establishing the WTO and the
GATT (all the more so in this times of pandemic where certainti es melts like ice under the sun).
WTO Members have recognised in Article 3.2 of the DSU that The dispute settlement system of the
WTO is a central element in providing security and predictability to the multilateral trading system
and that it serves to clarify the existing provisions of the covered agreements. Therefore, departures
from the legal clarifications contained in previous adopted reports should be avoided unless there
are cogent reasons for doing so.
13. The EU does not see any valid reason to depart from the consistent jurisprudence mentioned
above.
2. WHETHER THE MAEQ SCHEME IS PERMITTED BY ARTICLE 9(4) OF THE AOA
14. India has submitted, in the alternative, that the MAEQ Scheme falls within the scope of
Articles 9.1(d) and 9.1(e) of the AoA a nd is, therefore, permitted in accordance with Article 9.4 of
AoA. India argues that the period referred to in Article 9.4 was further extended by WTO Members
through the Nairobi Ministerial Decision on Export Competition.
15. The Complainants do not appe ar to contest that India is entitled, in principle, to rely on
Article 9.4 of the AoA, despite the expiry of the implementation period mentioned therein. Instead,
the Complainants seem to argue that Article 9.4 is not available to India in this case becaus e the
subsidies at issue do not fall within the scope of Articles 9.1(d) and 9.1(e) of the AoA.
16. The European Union does not take position on the question of whether the subsidies at issue
fall within the scope of Articles 9.1(d) and 9.1(e) of the AoA. The European Union, nevertheless,
would invite the Panel to examine very carefully this issue. The mere fact that a granting authority
describes a subsidy as aimed at covering transport or marketing expenses cannot be sufficient to
consider that such subsidy falls within the scope of Article 9.1 (d) or (e) of the AoA for the purposes
of Article 9.4. Instead, it must be shown that there is some link, either in law or in fact, between the
granting of the subsidies and those types of expenses. Otherwise, it wo uld be all too easy for a
developing country Member to evade its obligations under the AoA simply by labelling all their
subsidies as transport or marketing subsidies, regardless of their intended or actual use, and relying
on Article 9.4.
17. Furthermore, even if the subsidies at issue fell within the scope of scope of Article 9.1 (d) or
(e) of the AoA, the European Union recalls that the exception granted by Article 9.4 is subject to the
express condition that the export subsidies listed in those provisi ons "are not applied in a manner
that would circumvent reduction commitments."
3. WHETHER THE EXEMPTION OF IMPORT DUTIES UNDER THE DFIA SCHEME CONSTITUTES A SUBSIDY
WITHIN THE MEANING OF THE AOA AGREEMENT AND THE SCM AGREEMENT
18. The European Union agrees with India that the definition of subsidy in the SCM Agreement is
relevant for the interpretation of the term of subsidy in the AoA. The European Union further agrees
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

with India that the remission of import duties in accordance with footnote 1 of the SCM Agreement
cannot be considered as an export subsidy within the scope of Article 9.1 (a) of the AoA.
19. The European Union understands that Australia's position is that the exemption of import
duties under the DFIA Scheme does not comply with the requirements of footnote 1, in conjunction
with paragraph (i) of Annex I of the SCM Agreement. The European Union does not take position on
this question, which involves the assessment of factual elements beyond the EU's knowledge. The
European Union, nevertheless, would invite the Panel to ascertain very carefully whether, as alleged
by India, the exemption of import duties under the DFIA Scheme is in accordance with footnote 1 of
the SCM Agreement, in conjunction with paragraph (i) of Annex I.
4. WHETHER ARTICLE 27 OF THE SCM AGREEMENT EXCLUDES INDIA FROM THE SCOPE OF THE
SCM AGREEMENT
20. Australia and Guatemala have submitted that certain measures applied by India are export
subsidies prohibited under Article 3.1(a) of the SCM Agreement a nd that, in providing those
subsidies, India acts inconsistently with its obligation under Article 3.2 of the SCM Agreement
21. India states that Article 3 of the SCM Agreement does not apply to India by virtue of
Article 27.2 of the SCM Agreement. The issue before the Panel is whether, in the case of India, the
8 year period mentioned in Article 27.2 (b) of the SCM Agreement commenced on the date of entry
into force of the WTO Agreement or on the date of India's graduation from Annex VII(b).
22. The European Union recalls that the same issue was raised in India – Export Related Matters.
In that case, the panel concluded that the 8 year period mentioned in Article 27.2 (b) commenced
in all cases on the date of entry into force of the WTO Agreement and, therefore, that India was not
excluded from the scope of application of Article 3 of the SCM Agreement. The panel report in
India – Export Related Matters is subject to appeal. Nevertheless, the European Union finds the legal
reasoning of the panel in India – Export Related Matters highly persuasive and sees no reason why
the Panel should reach a different conclusion in this dispute.
23. The EU thanks the Panel for its attention and for taking into account its views in solving this
dispute.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX C-6
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN

I. INTRODUCTION
1. Japan has a systemic interest in ensuring the coherent interpretation of the WTO covered
agreements, including the provisions of the DSU, the Agreement on Agriculture and the
SCM Agreement. Since India is a top exporter and consumer of sugar, its measures may have
substantial impacts on global supply of, and demand for, raw sugar, including New York raw sugar
market. As an importer of raw sugar, Japan is interested in these proceedings particularly from the
viewpoint of transparency. Japan limits its comments to four issues: (i) the concept of market price
support under the Agreement on Agriculture; (ii) "financial contribution" requirement issues arising
from the complainants' export subsidy claims; (iii) Article 27 and Annex VII(b) of the
SCM Agreement, and (iv) India's preliminary ruling request.
II. MARKET PRICE SUPPORT UNDER THE AGREEMENT ON AGRICULTURE
2. Japan now turns to the complainants' claim that India provides market price support to
sugarcane producers in excess of India's 10 per cent de minimis limit under the Agreement on
Agriculture. The complainants have demonstrated that India exceeds the 10 per cent de minimis
level through market price support provided under the FRP and SAP measures.
3. India, relying on paragraph 2 of Annex 3 to the Agreement on Agriculture, contends that those
measures do not constitute "market price support" and should not be included in the calculation of
its AMS. According to India, "Paragraph 2 delineates the scope of subsidies under paragraph 1", 1
such that the subsidies that must be included in a Member's AMS are only "budgetary outlays and
revenue forgone by governments or their agents ."2 India contends that because the "sugar mills
that purchase sugarcane from the farmers at FRP/SAP are neither government nor its agents[,]" the
FRP and the SAP programs do not qualify as "a subsidy by the government or its agents under
Annex 3."3
4. Japan disagrees with India's interpretation of paragraph 2 of Annex 3. Paragraph 2 does not
limit the types of support to be included in a Member's AMS to only "budgetary outlays and revenue
foregone by governments or their agents". Paragraph 2 expressly states that "[s]ubsidies under
paragraph 1 shall include both budgetary outlays and revenue foregone by governments or their
agents".4 Therefore, by its express terms, paragraph 2 does not exhaustively prescribe the types of
financial transfers to be included in a Member's AMS calculation. Japan further points out that
Article XVI:1 of the GATT 1994 refers to the granting or maintaining of "any subsidy, including any
form of income or price support". This provides contextual support for the view that market price
support under the Agreement on Agriculture is not limited in the manner argued by India. In addition,
Sugarcane Order which set out the purchase price for sugarcane was introduced in 1966, and India's
Schedules (G/AG/AGST/IND) stipulates a market price support. The claim in India's Submission that
the current FRP does not constitute the market price support is inconsistent with those facts.
5. For the foregoing reasons, Japan disagrees with India's view that paragraph 2 of Annex 3 to
the Agreement on Agriculture limits the types of support to be included in a Member's AMS to only
"budgetary outlays and revenue foregone by governments or their agents".
III. "FINANCIAL CONTRIBUTION" REQUIREMENT OF EXPORT SUBSIDY CLAIMS
6. Next, Japan turns to address the claims that India maintains export subsidies in breach of the
Agreement on Agriculture and the SCM Agreement. In relation to all of the alleged export subsidies,
India argues that, absent specific evidence of the "extent to which, if any, a government entity

1 India's first written submission, paras. 61-62.
2 India's first written submission, para. 62. (emphasis original)
3 India's first written submission, paras. 63-64.
4 Emphasis added.
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actually makes a financial contribution", there is no proof that a subsidy exists. 5 For India, a
complainant must provide direct evidence that payments have actually been made under a measure
to demonstrate the existence of a subsidy.
7. Japan does not agree with the approach of India, not only because it is inconsistent with the
text of the SCM Agreement, but also because it woul d set an unduly burdensome evidentiary
requirement on complainants to establish the existence of a subsidy. First, subparagraph (i) of
Article 1.1(a)(1) of the SCM Agreement identifies, as one type of financial contribution, a
government practice involving "a direct transfer of funds". As endorsed by the Appellate Body a few
times, the term of "funds" implies not only money, but also financial resources and other financial
claims more generally .6 "Financial contribution" therefore covers conduct of the gov ernment by
which money, financial resources, and/or financial claims are made available to a recipient ,7 the
provision of which could automatically place the recipient in a better position than it would otherwise
have been in the marketplace.8
8. Second, the approach of India could lead to circumvention of the disciplines under the
Agreement on Agriculture and the SCM Agreement by shielding non -transparent export subsidy
programs from scrutiny. If India's approach were adopted, it could provide an incentive for Members
granting export subsidies not to provide all relevant data on the actual operation of their programs.
Moreover, India's approach would also preclude WTO Members from making a claim that a measure
"as such" constitutes an export subsidy under the Agreement on Agriculture and the
SCM Agreement. While Japan does not take any position regarding the facts in this dispute, in
Japan's view, a legislative measure that sets out legal elements of an export subsidy may be found
to constitute an export s ubsidy "as such", without further direct evidence of actual making of a
financial contribution under that measure.
IV. ARTICLE 27 AND ANNEX VII(B) OF THE SCM AGREEMENT
9. Next, regarding the applicability of Article 3 of the SCM Agreement, Japan maintains that the
text of Article 27.2(b) of the SCM Agreement does not leave any scope for ambiguity in respect of
the end date of the transition contained therein. Japan then believes that Article 27.2(b) provides
for a transition of "eight years from t he date of entry into force of the WTO Agreement" which ran
from 1 January 1995 to 1 January 2003 during which the prohibition in Article 3.1(a) of the
SCM Agreement did not apply to developing country Members or Annex VII(b) graduates.
10. Furthermore, Japan views that a harmonious interpretation of Article 27.5 in connection with
Article 27.2 of the SCM Agreement leads to the conclusion that Article 27.5 only applies to a
developing country Member that is either in Annex VII(a) (least -developed countries) or to a
developing country Member that has not yet graduated from Annex VII(b), and can no longer apply
to developing countries that graduated from Annex VII(b).
11. Therefore, India is now subject to Article 3 of the SCM Agreement, as confirmed by the panel
in India – Export Related Measures .9 Although the panel report in that dispute is still subject to
appeal, Japan is of the opinion that it well addressed India's arguments which were mostly identical,
and then provides helpful interpretative guidance on this issue.
V. INDIA'S PRELIMINARY RULING REQUEST
12. Japan considers that measures not in existence at the time of the Panel's establishment does
not necessarily fall outside of the Panel's terms of reference. The Panel's terms of reference are
defined by the complainants' panel requests, which must meet the requirements of Article 6.2 of the
DSU. However, Article 6.2 does not "set out an express temporal condition or limitation on the
measures that can be identified in a panel request". 10 As such, it does not "categorically" prohibit

5 India's first written submission, paras. 107 and 147. (emphasis original)
6 Appellate Body Reports, Japan – DRAMs (Korea), para. 250; US – Large Civil Aircraft (2nd complaint),
para. 614.
7 Appellate Body Report, US – Large Civil Aircraft (2nd complaint), para. 614.
8 Panel Report, EC and certain member States – Large Civil Aircraft, paras. 7.1501-7.1502;
Appellate Body Report, EC and certain member States – Large Civil Aircraft, footnotes 22-23.
9 Panel Report, India – Export Related Measures, para. 7.18.
10 Panel Report, US – Washing Machines, paras. 7.248-7.249.
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"the inclusion, within a panel's terms of reference, of measures that come into existence or are
completed after the panel is requested".11
13. Regarding the alleged expired measures, Japan considers that a critical distinction must first
be drawn between, on t he one hand, the measures at issue and, on the other hand, the legal
instruments embodying them. It is the former, rather than the latter, which must fall within the
Panel's terms of reference.12 If the Panel finds that the measures at issue have in fact expired, the
Panel must consider whether to make findings on them in light of the objective of securing a positive
solution to the dispute. The nature of the domestic support commitments under the Agreement on
Agriculture weighs in favor of examining the W TO-consistency of the measures alleged to have
expired. The Panel's analysis under Articles 3.2 and 6.3 of the Agreement on Agriculture is
retrospective as it entails a determination of whether India was in compliance with its domestic
support reduction commitments in years preceding the establishment of the Panel. I f the expiry of
a legal instrument could shield a Member's provision of domestic support from later scrutiny, this
would lead to easy circumvention of the domestic support commitments and obliga tions under the
Agreement on Agriculture. Relevant considerations include whether the effects of the measures
continue to impair the benefits accruing to the complainants under the Agreement on Agriculture,
as well as the possibility of India reintroducing the alleged expired measures.13
14. Regarding the post -establishment measures at issue, Japan also considers that post -
establishment measures does not necessarily fall outside of a panel's terms of reference. Panel's
terms of reference may include post-establishment measures if: (i) the terms of reference are broad
enough and (ii) "the new measure does not 'change the essence' of the original measures included
in the [panel] request". 14 Japan notes that the complainants' panel requests appear to contain
language broad enough to cover the so -called MAEQ scheme, and the MAEQ Scheme is in essence
the same as the measures described in the complainants' panel requests.
15. In this respect, Japan supports the preliminary ruling of the Panel issued on the 9th of
November 2020.

11 Panel Report, US – Washing Machines, para. 7.248.
12 Panel Report, Argentina – Footwear, paras. 8.40-8.41. See also Appellate Body Report, US – Upland
Cotton, paras. 262 and 270.
13 Panel Reports, China – Agricultural Producers, para. 7.86; China – Electronic Payment Services,
para. 7.228.
14 Panel Report, EC – IT Products, para. 7.139.
WT/DS579/FR/Add.1 • WT/DS580/FR/Add.1 • WT/DS581/FR/Add.1

ANNEX C-7
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES

1. The United States welcomes the opportunity to present its views to the Panel on the proper
legal interpretation of certain provisions of the Agreement on Agriculture ("Agriculture Agreement")
and the Agreement on Subsidies and Countervailing Measures ("SCM Agreement") as relevant to
certain issues in this dispute.

2. In their submissions, Australia, Brazil, and Guatemala (the "Complainants") calculated India's
Aggregate Measurement of Support ("AMS") for sugarcane based on, amongst other measures,
India's market price support programs: the Fair and Remunerative Price ("FRP") and relevant State
Advised Price ("SAP").
3. India may, like other Members of the WTO, maintain domestic support programs, including
market price support programs, as long as the dome stic support provided under those programs
does not exceed the Member's fixed commitment levels. The Agriculture Agreement provides that
each Member's "domestic support . . . commitments in Part IV of each Member's Schedule constitute
commitments limiting subsidization," and that "a Member shall not provide support in favour of
domestic producers [of agricultural products] in excess of the commitment levels specified in
Section I of Part IV of its Schedule."
4. India's consistency with this commitment is measured in terms of its Current Total Aggregate
Measurement of Support ("Current Total AMS"), which is the sum of the AMS provided to each basic
agricultural product. Pursuant to Article 1(a) of the Agriculture Agreement, the AMS for each basic
agricultural product must be "calculated in accordance with the provisions of Annex 3 of this
Agreement and taking into account the constituent data and methodology used in the tables of
supporting material incorporated by reference in Part IV of the Member's Schedule." Article 1(h), in
turn, provides that a Member's "Current Total AMS" for a given year refers to "the sum of all domestic
support provided in favour of agricultural producers, calculated as the sum of all aggregate
measurements of support for basic agric ultural products, all non -product-specific aggregate
measurements of support[,] and all equivalent measurements of support for agricultural products."
Pursuant to Article 6.4 of the Agriculture Agreement, a Member's Current Total AMS does not include
product-specific AMS values that do not exceed the relevant de minimis level of support.
5. India, however, does not provide an AMS commitment level in Section I of Part IV of its
Schedule of Concessions on Goods.
6. For this scenario, Article 7.2(b) of the Agriculture Agreement provides: "Where no Total AMS
commitment exists in Part IV of a Member's Schedule, the Member shall not provide support to
agricultural producers in excess of the relevant de minimis level set out in paragraph 4 of Article 6."
Article 6.4(b) of the Agriculture Agreement sets out the de minimis level for developing countries
at 10 percent. The parties agree this is the applicable de minimis level for India.
7. Therefore, to determine India's Current Total AMS for each year, the Panel first must calculate
the product-specific AMS for each basic agricultural product, and compare that value to the total
value of production for that agricultural product. To the extent that the product -specific AMS for a
basic agricultural product exceeds In dia's de minimis level of 10 percent, the full value of that
product-specific AMS would be included in India's Current Total AMS. Because India has not made a
Total AMS commitment in Part IV of its schedule, in the event the product-specific AMS for any basic
agricultural product exceeds the de minimis level of 10 percent, India will have breached Articles 3.2
and 6.3 of the Agriculture Agreement.
8. Annex 3, paragraph 1 of the Agriculture Agreement sets out methodologies for calculating the
value of a Member's "product -specific" AMS "for each basic agricultural product receiving market
price support, non-exempt direct payments, or any other subsidy not exempted from the reduction
commitments ('other non-exempt policies')."
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9. With respect to "market price support," while the Agriculture Agreement does not expressly
define this term, the ordinary meaning of the constituent terms reflect the scope of domestic support
programs contemplated by this term. A "market" is the physical or geographic place where
commercial transactions take place, or the business of buying and selling, including the rate of
purchase or sale, of a particular good or commodity. "Price" is defined as "a sum in money or goods
for which a thing is or may be bought or sold." "Support" is defined as "the action of holding up,
keeping from falling, or bearing the weight of something" or "the action of contributing to the success
of or maintaining the value of something."
10. Relevant to the consideration of the term "market price support," the dictionary also supplies
a number of definitions of compound terms. The Shorter Oxford English Dictionary, defines "market
price" as "the current price which a commodity or service fetches in the market." Further, it defines
"price support" as "assistance in maintaining the levels of prices regardless of supply and demand."
11. Thus, the ordinary meaning of the constituent terms, as well as the com pound phrases
indicates that "market price support" is the provision of assistance in holding up or maintaining the
price for a product in the market, regardless of supply and demand. In the context of Annex 3,
paragraph 1, an AMS for "each basic agricultu ral product" includes the provision of assistance in
holding up or maintaining a market price for that agricultural product. As such, this assistance can
be provided directly by the Government or through consumer purchases.
12. The panel in Korea –Beef reached the same understanding of the meaning of "market price
support" under Annex 3, paragraph 8. The panel noted that the "quantification of market price
support in AMS terms is not based on expenditures by government," and that it "can exist even
where there are no budgetary payments." Further, it stated that "all producers of the products which
are subject to the market price support mechanism enjoy the benefit of an assurance that their
products can be marketed at least at the support price."
13. Paragraph 8 of Annex 3 provides the methodology for calculating the specific type of support
at issue in this dispute – market price support. Paragraph 8 states that "market price support shall
be calculated using the gap between a fixed external reference price and the applied administered
price multiplied by the quantity of production eligible to receive the applied administered price." The
paragraph goes on to provide that "[b]udgetary payments made to maintain this gap, such as
buying-in or storage costs, shall not be included in the AMS."
14. Thus, the calculation of market price support is based on the price gap between the "applied
administered price" identified in the domestic support measure and the "fixed external reference
price," multipl ied by the quantity of eligible production. Based on the text of the
Agriculture Agreement and the ordinary meaning of the terms:
• The "applied administered price" is the price the Indian measures provide for each of
the basic agricultural products and is identified for each product and each year in the
Indian legal instruments implementing the program.
• The "fixed external reference price" is a static reference value defined by the Agriculture
Agreement in Annex 3, paragraph 9. This states that the price "shall be based on the
years 1986 to 1988" and "may be adjusted for quality differences as necessary."
• Finally, the "quantity of production eligible" to receive the applied administered price is
the amount of the product fit or entitled to receive the p rice, not the amount of
agricultural product actually purchased. Because under India's programs all production
is entitled to receive either the FRP or a higher SAP, the "quantity of production eligible"
is the total sugarcane production volume for that year.
15. That is, "market price support" requires a comparison between the "applied administered
price" and the "fixed external reference price." An "applied administered price" is the price "set by
the government at which specified entities will purchase c ertain basic agricultural products. " The
difference between these prices is then multiplied by the "quantity of production eligible to receive
the applied administered price ." The Annex 3, paragraph 8 methodology thus indicates that a
"market price support" measure would include an "applied administered price" that is available to
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some quantity of "eligible" production; and that such support for each unit of the product can be
measured through comparison of the administered price to a fixed, external "reference" price.
16. The calculation methodology provide in Annex 3, paragraph 8, for market price support is
reflected in the following equation:
(Applied Administered Price – Fixed External Reference Price) * Quantity of Production Eligible =
Value of Market Price Support
As described above, the value of market price support for a basic agricultural product should be
summed along with any other non-exempt product-specific support in favor of that product to
calculate the AMS for that product.
17. The Complainants' arguments in this dispute are consistent with the calculation methodology
set out in the Agriculture Agreement and as recognized by the panels in China – Domestic Support
and Korea –Beef.
18. India attempts to argue that its market price support m easures do not quality as domestic
support at all, and therefore should not be included in its AMS calculation. India mistakenly points
to the text of Annex 3 to the Agricultural Agreement to make this argument.
19. India's interpretation of Annex 3 is a m isreading of the text. Paragraph 2 does not limit
paragraph 1. Rather, paragraph 2 specifies two forms of financial transfers that must be included in
the list of support outlined in Paragraph 1. Paragraph 2 sets out this relationship with Paragraph 1
through the use of the term "shall include." "Shall" is defined as "a command, promise, or
determination" and "include" is defined as "[t]o contain as a member of an aggregate, or a
constituent part of a whole; to embrace as a sub-division or section; to comprise; to comprehend."
Therefore, the ordinary meaning of "shall include" indicates that measures involving budgetary
outlays and revenue forgone must be included as a part of the domestic support programs listed in
Paragraph 1. The paragraph does not mean, as India argues, that the domestic support programs
must be limited to only the type of transfers identified in Paragraph 2. In other words, budgetary
outlays and revenue forgone form a subset, and not an outer boundary, of the kinds of support that
must be included in a Member's AMS calculation.
20. Furthermore, Annex 3 is subject to Article 6 of the Agriculture Agreement, which sets out
Members' "Domestic Support Commitments". While the term "domestic support" is not specifically
defined in the Agricultur e Agreement, the ordinary meaning of the words making up this phrase
reveal the broader nature of the term. "Domestic" is defined as "[o]f or relating to one's own country
or nation; not foreign, internal, inland, 'home'." "Support" is defined as "[t]he ac tion or an act of
helping a person or thing to hold firm or not to give way; provision of assistance or backing." India's
proposed interpretation artificially limits the scope of such "assistance or backing" in a manner not
supported by the ordinary meaning of the term "domestic support."
21. Moreover, India's proposed limitation on programs qualifying as market price support ignores
the method for calculating market price support as set out in Paragraph 8 of Annex 3. Nothing in
the calculation of market p rice support set out in Paragraph 8 necessarily involves payments by a
government or its agents. In fact, the methodology of Paragraph 8 expressly excludes from the
calculation of market price support budgetary payments made to maintain the price gap. Unde r
India's reading, there would be no domestic support for market price support because Paragraph 2
limits domestic support to budgetary outlays, while Paragraph 8 excludes budgetary payments.
22. Therefore, the AMS calculation is intended to measure the total amount of support a
WTO Member provides in favour of its domestic agricultural producers. In the case of market price
support programs, the level of support provided must be included in that calculation whether or not
it involves budgetary outlays by the government. Consequently, the Complainants correctly include
the support provided through India's FRP and SAP measures within their AMS calculations.
23. The Complainants claim that India maintains export subsidies in breach of Articles 3. 3, 8,
and 9 of the Agriculture Agreement and Article 3 of the SCM Agreement.
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24. Article 3.3 of the Agriculture Agreement sets out two categories of commitments for export
subsidies: a commitment on scheduled agricultural products and a commitment on uns cheduled
agricultural products. Section II of Part IV of India's Schedule does not list any commitments on
sugar, therefore, sugar is an unscheduled agricultural product. Consequently, India has committed
not to provide export subsidies for sugar of the ty pe listed in paragraph 1(a) of Article 9 of the
Agriculture Agreement.
25. India also has committed not to provide sugar subsidies contingent on export through
Articles 1 and 3 of the SCM Agreement. Where a Member has granted a subsidy as defined in
Article 1.1 of the SCM Agreement, it will be prohibited as an export subsidy if the subsidy is
inconsistent with the prohibitions in Articles 3.1(a) and 3.2 of the SCM Agreement.
26. Like Article 9.1(a) of the Agriculture Agreement's restrictions on subsidies "c ontingent on
export performance", Article 3.1(a) of the SCM Agreement prohibits subsidies that are
"contingent … upon export performance." There is nothing in these texts to suggest that "contingent
on" and "contingent upon" have different meanings. The relevant dictionary definition of "contingent"
is "[c]onditional; dependent on, upon; [d]ependent for its existence on something else." In the
export subsidy context, "the grant of a subsidy must be 'tied to' export performance." Therefore, to
find that a su bsidy is an export subsidy under either the Agriculture Agreement or the
SCM Agreement, the subsidy must be conditioned, solely or as one of several other conditions, on
export performance. This export contingency can be demonstrated "in law" ( de jure ) or
"in fact" (de facto).
27. India sets out two broad defences, both inadequate to rebut challenges to subsidy measures
under the Agriculture Agreement and the SCM Agreement.
28. First, India fails to recognize that export subsidies under the Agriculture Agreement are
measured based on amounts "allocated or incurred" by a government. Under the
Agriculture Agreement, India has a zero commitment level for export subsidies. The export subsidy
commitments India made in the Agriculture Agreement are measured based on allocation or
incurrence, not solely on actual payments made. If the Panel finds that Complainants are correct
that India has granted legal authority for the provision of export subsidies and has made budgetary
allocations to local authorities for the payment of those subsidies, then those facts would provide a
sufficient basis for the Panel to determine that India has provided export subsidies within the
meaning of the Agriculture Agreement.
29. Second, India also fails to acknowledge that, under the SCM Agreement, the burden for
showing that an export subsidy exists does not require specific evidence demonstrating that a direct
transfer of funds, for example, has in fact been made to, or received by, a recipient entity. A measure
setting out the legal elements of an export su bsidy, on its face, provides sufficient evidence to
demonstrate the existence of such a subsidy. India's arguments would mean that a complainant
would be prevented from demonstrating the existence of a subsidy because it did not have access
to specific evi dence of payment information, such as proof of bank transfers or other payment
activity. Such an evidentiary standard would shield respondents from potential liability under the
WTO agreements and only incentivize non-transparency.
30. The United States is not aware of any dispute in which a panel or the Appellate Body has
imposed such an evidentiary burden as India suggests on a complainant. For example, the panel in
India –Export Related Measures found the existence of subsidies based on an examination of the
measures themselves, and did not find that additional evidence of actual payments was required.
Instructive in this dispute is the panel's analysis of the Merchandise Exports from India Scheme
("MEIS").
31. India's attempt to interpret the Agricultur e and SCM Agreements as requiring direct,
evidentiary proof of actual government transfers to demonstrate the existence of a de jure export
subsidy finds no support in the text of the agreements, and must be rejected.
32. Although Article 27 of the SCM Agreement provides a limited exception to Article 3.1(a), India
no longer qualifies for that limited exception. As acknowledged by India in this dispute, India's GNP
per capita has already reached $1,000 for three consecutive years (2013, 2014, and 2015).
Accordingly, India is no longer a developing country Member referred to in Annex VII and therefore
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paragraph 2(a) of Article 27 of the SCM Agreement no longer applies to India. Paragraph 2(b) of
Article 27 also does not apply to India. For "other developing c ountry Members" not listed in
Annex VII, subparagraph (b) provided a phase-out "for a period of eight years from the date of entry
into force of the WTO Agreement." The WTO Agreement entered into force on January 1, 1995, and
the "period of eight years" expired on January 1, 2003. Thus, because January 1, 2003 has passed,
paragraph 2(b) does not apply to India, and India must terminate its export subsidies. As a result,
India is now subject to Article 3 of the SCM Agreement. India's status vis -à-vis Article 3 of the
SCM Agreement was confirmed by the panel in India – Export Related Measures.
33. Properly interpreted, the SCM Agreement provides different end dates for the exemption of
the prohibition in Article 3.1(a). India was an Annex VII(b) developing country Member. An
Annex VII(b) Member that graduated before January 1, 2003, may provide expo rt subsidies until
January 1, 2003. Those Annex VII(b) Members that graduate after January 1, 2003, like India, are
not obligated to end their export subsidies until the date of their graduation. Thus, those
Annex VII(b) Members that graduate after January 1, 2003, like India, would have had a longer
period to provide export subsidies than a non -Annex VII developing country Member, described in
Article 27.2(b), whose time to grant export subsidies ended on January 1, 2003.
34. In other words, a Member graduating from Annex VII(b) after January 1, 2003, would receive
better treatment (in the sense of a longer implementation period) than the Members originally within
the scope of Article 27.2(b).
35. In sum, Article 27 of the SCM Agreement does not provide India with an additional eight years
to phase out its export subsidies; therefore, India is subject to the obligations of Article 3.1(a)
and 3.2 of the SCM Agreement.
36. The United States appreciates the opportunity to submit its views in connection with t his
dispute on the proper interpretation of relevant provisions of the Agriculture Agreement and the
SCM Agreement.
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ANNEX D
COMMUNICATIONS BY THE PANEL REGARDING THE FIRST SUBSTANTIVE MEETING
Contents Page
Annex D-1 Panel's communication to the parties conveying its decision to hold two
substantive meetings, with the first substantive meeting to be held in a
"hybrid" format, as well as proposing the dates, and the adoption of draft
additional working procedures, for the first substantive meeting, dated 16
October 2020
128
Annex D-2 Panel's communication to the parties conveying its decision regarding the
format and t he conduct of the first substantive meeting and adopting the
Additional Working Procedures for the Panel's First Substantive Meeting to be
Held by Remote Means, dated 2 November 2020

130
Annex D-3 Panel's communication to the parties addressing India's confidentiality queries
and request for postponement of the first substantive meeting, dated
6 November 2020
133
Annex D-4 Panel's communication to the parties and third parties regarding the
postponement of the first substantive meeting, dated 18 November 2020
135
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX D-1
PANEL'S COMMUNICATION TO THE PARTIES CONVEYING ITS DECISION TO HOLD TWO
SUBSTANTIVE MEETINGS, WITH THE FIRST SUBSTANTIVE MEETING TO BE HELD IN A "HYBRID"
FORMAT, AS WELL AS PROPOSING THE DATES, AND THE ADOPTION OF DRAFT ADDITIONAL
WORKING PROCEDURES, FOR THE FIRST SUBSTANTIVE MEETING, DATED 16 OCTOBER 2020

Dear representatives of the parties,

The Panel thanks the parties for submitting, on 9 October 2020, their comments on the two proposed
modalities for holding the Panel's first substantive meeting with the parties and third parties.

Having carefully reviewed the parties' comments, the Panel considers it appr opriate to hold two
substantive meetings, as provided for in its Working Procedures. In light of the commitments of the
panelists and the availability of meeting rooms in CWR, the Panel intends to hold its first substantive
meeting with the parties and third parties during the week of 23 November 2020.

As for the format of the first substantive meeting, the Panel, in its communication of 2 October 2020,
proposed to hold the meeting in a hybrid form, whereby representatives of the parties and third
parties could participate either physically, in a meeting room at the WTO premises, or virtually,
through video conferencing technology. The complainants agree with the proposed approach. India,
however, disagrees with the Panel's proposal, arguing that permitting representatives to connect to
the meeting remotely would undermine India's due process right to a fair opportunity to make its
defences. According to India, the physical presence of the panelists and representatives of the
parties is an indispensa ble part of the WTO dispute settlement process. While recognizing the
objective of prompt settlement of disputes, enshrined in Article 3.3 of the DSU, India contends that
such objective should not be interpreted in a way that undermines India's due process rights.

The Panel notes that the DSU does not address the issue of the format of panel meetings. India has
not identified any provision of the DSU precluding a panel, explicitly or implicitly, from holding a
substantive meeting in the hybrid format propo sed by the Panel. Article 12.1 of the DSU allows
panels to deviate from the Working Procedures in Appendix 3 to the DSU, "after consulting the
parties to the dispute". As recognized by India, the Panel has been consulting the parties on the
format of its first meeting for a couple of months now. The Panel does not agree with India's view
that modification of the Working Procedures requires agreement of the parties.

Furthermore, in the view of the Panel, the proposed hybrid format addresses the concerns identified
by India. First, the proposed format would not require any party or third party to attend the meeting
remotely – parties' and third parties' representatives could attend the meeting physically or
remotely, as they prefer. The proposed Additional Pr ocedures would allow the parties and third
parties an adequate opportunity to fully present their claims and make out their defences, as
indicated in the Working Procedures adopted by the Panel on 5 December 2019. Due process rights
and equal treatment can be fully assured. The Panel also notes that the proposed hybrid format is
in accordance with past practice in WTO dispute settlement. For instance, in Australia – Tobacco
Plain Packaging, the Appellate Body allowed a member of one of the complainants' del egations to
participate in the appellate hearing via video conference. 1 Further, we also note that, due to the
constraints imposed by the pandemic, a number of WTO panels have recently held their meetings in
the hybrid form proposed by this Panel. It is also public knowledge that a number of international
tribunals and domestic courts are now holding virtual hearings.

The Panel recalls that the outbreak has already caused a delay of five months in these proceedings.
Further, the current scientific information is far from allowing the Panel to predict when it may be
able to hold an exclusively physical meeting. While the Panel acknowledges the benefits of holding
an exclusively physical meeting, given the continued travel restrictions and health risks caused by

1 See e.g. Appellate Body Reports, Australia – Tobacco Plain Packaging (Dominican Republic),
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

the pandemic, on balance, the Panel finds it appropriate to hold it s first substantive meeting with
the parties and third parties in a hybrid form.

To this end, the Panel proposes to the parties the adoption of the attached Additional Working
Procedures of the Panel Concerning Meetings with Remote Participation. Parties are invited to submit
comments on these proposed Additional Working Procedures, as well as the proposed date of the
first substantive meeting, by 5:00 p.m. (Geneva time) on Friday 23 October 2020.

Finally, the Panel wishes to inform the parties that, since the Chairman is in Switzerland, he intends
to attend the first substantive meeting physically at the WTO premises, subject to further
developments.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX D-2
PANEL'S COMMUNICATION TO THE PARTIES CONVEYING ITS DECISION REGARDING THE FORMAT
AND THE CONDUCT OF THE FIRST SUBSTANTIVE MEETING AND ADOPTING THE ADDITIONAL
WORKING PROCEDURES FOR THE PANEL'S FIRST SUBSTANTIVE MEETING TO BE HELD BY
REMOTE MEANS, DATED 2 NOVEMBER 2020

Dear representatives of the parties,

The Panel recalls its communication, dated 16 October 2020, indicating its intention to hold the first
substantive meeting with the parties and third parties in a hybrid format during the week of
23 November 2020, and proposing the adoption of the draft Additional Working Procedures
Concerning Meetings with Remote Participation.

On 28 October 2020, the parties submitted their comments on the proposed Additional Working
Procedures and the dates of the first substantive meeting. The complainants agreed with the
proposed dates as well as the Additional Procedures, subject to one minor addition. India stated that
it is unable to agree to a hybrid procedure because such a procedure does not qualify as a substantive
meeting under the DSU. According to India, a hybrid procedure would constitute a violation of India's
due process rights because it is inequitable and would not allow India to sufficiently prepare and
present its case. India also poin ted to a number of concerns related to the confidentiality of the
procedure.

The Panel is mindful of the disruptions caused by the COVID-19 pandemic and the difficulties faced
by the parties in their work. The continuous public health crisis has already caused a significant
delay in these proceedings. The Panel further recalls that, pursuant to Article 3.3 of the DSU, "prompt
settlement" of disputes "is essential to the effective functioning of the WTO and the maintenance of
a proper balance between the r ights and obligations of Members". The Panel therefore does not
intend to alter its decision to proceed with the first meeting. Nonetheless, taking into account the
comments provided by the parties, and in particular those by India, as well as the recent d ecisions
by the Swiss authorities restricting physical meetings, the Panel has made certain modifications to
the proposed format of the meeting.

First, India argues that a "hybrid" meeting would be inequitable. India submits that, due to the travel
restrictions imposed by the Swiss authorities, its legal representatives and external counsel will be
unable to travel to Geneva, unlike certain representatives of the parties and third parties in this
dispute. In India's view, the outcome would be advantageous to the complainants and contrary to
the letter and spirit of Article 12.10 of the DSU. As the parties are aware, following receipt of India's
comments, the authorities of the Canton of Geneva announced additional restrictions on physical
meetings of more t han five people in public buildings, including within international organizations,
as from 7 p.m. 2 November 2020. In light of this decision, the Panel has now decided to conduct
its first meeting in a fully virtual manner, via Cisco WebEx videoconferencing technology. This
will allow representatives of all parties and third parties to attend the meeting remotely. The
Additional Working Procedures for the Panel's First Substantive Meeting to be Held by Remote Means,
adopted today by the Panel, are provided in the attachment to this communication.

India further submits that a hybrid (or virtual) meeting would not qualify as a substantive meeting
within the meaning of the DSU. The Panel notes that the DSU does not address the issue of the
format of panel meet ings.1 The Panel is not precluded from amending its Working Procedures and
conducting meetings in the format it deems appropriate, after consulting with the parties to the
dispute, as provided for in Article 12.1 of the DSU. According to paragraph 11 of t he Working
Procedures adopted on 5 December 2019, in the interest of full transparency and harmonization of
the timetable, the parties agreed that the substantive meetings will take place in the presence of
the parties to all three disputes. The proposed f ormat of the first meeting will allow all the parties,
as well as third parties, to participate in the meeting via videoconferencing technology. All parties

1 Appendix 3 to the DSU refers to a "substantive meeting of the panel", without specifying a particular
format.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

and third parties will be connected with, and heard by, each other and the Panel. The virtual format
will also allow the Panel to conduct the meeting in the manner envisaged in the Panel's adopted
Working Procedures and in a way that will respect the parties' and third parties' due process rights:
each party will be invited to present its opening and closing statements; third parties will be invited
to present their views at the third -party session; and the parties will be given an opportunity to
make comments or ask the other parties or third parties questions. In sum, the Panel considers that
such a me eting conducted through videoconferencing technology does qualify as a substantive
meeting under the DSU.

India also claims that the Panel has failed to accord India a sufficient opportunity to prepare for, and
effectively present, its case, contrary to Article 12.10 of the DSU. The complainants, on the other
hand, have requested the Panel to send questions in advance of the meeting. In order to
accommodate the parties' concerns and allow the parties time to effectively prepare and present
their respective claims and defenses, the Panel has decided to send advance questions to the parties,
10 working days before the start of the meeting. The questions will convey the Panel's key points of
interest and allow the parties to coordinate between their relevant authorities well in advance of the
meeting. The Panel has also decided that it will not pose any additional questions at the meeting, in
order to provide maximum clarity as to the scope of the discussions at the meeting. The Panel may,
if neces sary, send additional written questions to the parties and third parties following the
conclusion of the meeting.

According to India, the Panel has also overlooked concerns regarding the protection of confidentiality
in the proposed proceedings. The Panel disagrees. The Panel notes, first, that the obligation to
respect the confidentiality of the meetings with the Panel applies regardless of the format of the
meeting. As indicated in paragraphs 12(2) and 19(2) of the Working Procedures, each party and
third party shall ensure that members of their delegations act in accordance with the DSU, in
particular with regard to the confidentiality of the proceedings. Further, participants in the virtual
meeting have to respect the confidentiality and security rules specified in the Additional Working
Procedures. Article 3.10 of the DSU sets forth WTO Members' understanding that "if a dispute arises,
all Members will engage in these procedures in good faith and in an effort to resolve the dispute".
The Panel has no reason to doubt that the parties will observe such fundamental obligations in these
proceedings. Further, the Panel is of the view that the end -to-end encryption that Webex provides
for will protect the confidentiality of the Panel's meeting with the parties and third parties.

Regarding the logistical and technical concerns raised by India, the Panel will provide further
guidelines in due course, covering issues such as the manner of document sharing, which has also
been highlighted by the complainants. As reflected in the Additional Working Procedures, the Panel
has asked the Secretariat to test the platform with each delegation prior to the meeting, so as to
demonstrate the use of the platform and detect any issues in advance of the meeting. Finally, the
Panel will run a test with all participants, providing another opportunity for the parties and third
parties to test and experience, in advance, all aspects of the virtual meeting.

Taking into account the time differences among the parties and third parties, as well as panelists in
this dispute, the Panel has decided to proceed with the meeting as follows:

• On Monday, 23 November at 12:00 -15:00 (Geneva time) , the Panel will convene a test
session with all participants from the parties and the third parties.

• On Tuesday/Wednesday, 24-25 November at 12:00 -15:00 (Geneva time) , the Panel will
begin its first meeting with the parties. The Panel will first invite the parties to deliver their
opening statements. After the conclusion of the opening statements, the P anel will invite
each party to comment or ask questions to the other parties. The Panel will also invite the
parties to orally present their answers to the advance questions.

• On Thursday, 26 November at 12:00 -15:00 (Geneva time) , the Panel will hold the
third-party session. The Panel will not pose questions to any third party. The Panel will give
the parties an opportunity to ask third parties questions about their submissions or
statements. If necessary, the Panel will dedicate an appropriate amount of t ime to finalize
this session on the following day.

• On Friday, 27 November at 12:00-15:00 (Geneva time), the Panel will invite the parties to
orally present their answers to any remaining advance questions. The Panel will also invite
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

the parties to deliver their closing statements. Thereafter, the Panel will end the first
substantive meeting.

The Panel invites the parties to fill in the attached Registration form and return it to the Panel by
5 p.m. (Geneva time) on Monday, 9 November 2020.

The details of the third-party session will be communicated to the third parties in due course.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX D-3

PANEL'S COMMUNICATION TO THE PARTIES ADDRESSING INDIA'S CONFIDENTIALITY QUERIES
AND REQUEST FOR POSTPONEMENT OF THE FIRST SUBSTANTIVE MEETING, DATED
6 NOVEMBER 2020

Dear all,

The Panel thanks India for its communication of 4 November 2020. In the communication, India
seeks clarification on two issues with respect to the confidentiality of the Pane l's first substantive
meeting with the parties and third parties, scheduled for the week of 23 November 2020. Further,
India points out that several key officials from the central and state authorities will be unavailable
in the period preceding the first substantive meeting, due to a national festival. India also states
that a key member of its delegation has contracted the COVID -19 virus and is in the process of
recovery. Therefore, India requests that the Panel reconsider the dates for the first substant ive
meeting and to reschedule it for the week of 7 December 2020.

With respect to the confidentiality of the meeting, India inquires, first, what safeguards, if any, the
Panel has adopted to ensure that the parties to the dispute respect the obligation t o preserve the
confidentiality of the meeting. As the Panel noted in its communication of 16 October 2020, all
participants are under the obligation to respect the confidentiality of the proceedings, as reflected
in the DSU, the Panel's Working Procedures adopted on 5 December 2019, as well as the Additional
Working Procedures adopted on 2 November 2020. The Panel also indicated that it has no reason to
doubt that all participants will act in good faith and observe their fundamental obligations in the
present proceedings. The Panel therefore continues to expect the parties to abide by these
confidentiality provisions, and act accordingly during the meeting.

India also asks the Panel whether the WTO has entered into any formal agreement with Cisco Webex,
to ensure that the platform maintains the confidentiality of the meeting. The Panel understands that
there is no formal agreement between the WTO and Cisco Webex regarding confidentiality since
such an agreement would be unnecessary. The Panel further understands that the IT security officers
in the WTO Secretariat have assessed the security features of Cisco Webex and found it to be a
suitable platform to hold virtual panel meetings. The WTO Secretariat has therefore purchased a
number of licences from Cisco Webex, necessary for scheduling and hosting meetings with
end-to-end encryption. Based on the foregoing, and considering that Cisco Webex has been used by
several WTO panels as well as other international tribunals so far, the Panel trusts that this platform
should be able to protect the confidentiality of the Panel's first substantive meeting with the parties
and third parties.

India bases its request for the rescheduling of the meeting on two grounds. First, India points out
that due to the Diwali festival, and other festivals following Diwali, several key officials dealing with
these proceedings will be on leave. The Panel notes that the Diwali festival is an official public holiday
across India and that, this year, it will be celebrated on 14 -15 N ovember. The Panel's first
substantive meeting is scheduled for the week of 23 November, one week after the Diwali
celebrations. The Panel recalls that it first indicated its intention to hold the meeting towards the
end of November, in its communication t o the parties dated 2 October 2020. Subsequently, in its
communication of 16 October 2020, the Panel specified its intention to hold the meeting during the
week of 23 November 2020 and invited the parties to provide their comments thereon. On
28 October 20 20, the complainants confirmed their availability to attend the meeting on the
proposed dates. India, however, did not provide any comments on the proposed dates, in its
response to the Panel's communication.

Second, India states that a key member of its delegation has caught COVID-19 and will need time
to fully recover in order to attend the meeting. The Panel regrets to hear that the Indian colleague
has been infected by the virus. The Panel notes that, unfortunately, the nature of the virus is such
that it is impossible to predict whether any of the participants who are assigned to represent their
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

delegations at the meeting might contract the virus prior to the meeting. Indeed, it is this uncertainty
that has urged the Panel to hold its first substantive meeting virtually.

Finally, in this regard, the Panel wishes to emphasize that the scheduling conflicts of the members
of the Panel precludes the Panel from holding this meeting at any other time before the end of the
year.

Therefore, the Panel is not in a position to reschedule its first substantive meeting.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX D-4

PANEL'S COMMUNICATION TO THE PARTIES AND THIRD PARTIES REGARDING THE
POSTPONEMENT OF THE FIRST SUBSTANTIVE MEETING, DATED 18 NOVEMBER 2020
Dear all,

On 17 November 2020, India informed the Panel that a key member of its delegation has contracted
COVID-19 and will not be able to participate in the first substantive meeting scheduled for
23-27 November 2020. India states that the delegate's participation in the first substantive meeting
and in the preparation of India's responses to the Panel's questions is indispensable, both in terms
of substantive aspects of the dispute as well as the logistics and organization of the meeting. India
also states that several other delegates have gone into mandatory quarantine, further compromising
its delegation's ability to prepare for the meeting. Therefore, India requests the Panel to postpone
its first substantive meeting to December 2020, or to a later date on which all pan elists would be
available.

The Panel regrets to hear that another member of India's delegation has been infected by the virus
and is unable to participate in the first substantive meeting. The Panel wishes this delegate a speedy
recovery. The Panel unders tands the difficulties posed by this delegate's absence to India's
preparation for the meeting. Therefore, in order to allow India to make alternative arrangements for
the full participation of its delegation in the meeting, the Panel has decided to postpo ne its first
substantive meeting with the parties and third parties to 7-11 December 2020.

The Panel finds it important to underline that the reason for the postponement of the meeting is not
to provide time for the recovery of the affected Indian delegate. Rather, this extension is granted so
that India can make alternative arrangements in case the delegate at issue, or any other delegate,
is unable to participate in the meeting due to health reasons. The Panel considers two weeks to be
sufficient to make such arrangements.

Unfortunately, the outbreak continues affecting the flow of business in all corners of the world. All
members of the delegations of the parties and third parties involved in this dispute, as well as the
Panel and the Secretariat team, run the risk of contracting the virus prior to the date of the meeting.
The Panel cannot grant extensions each time a member of a delegation is infected and unable to
attend the meeting. In order to allow these proceedings to proceed, and to ensure that delegations
make full use of their right to present views to the Panel, the Panel invites all the parties and third
parties to make the necessary alternative arrangements that would allow their delegations to attend
the meeting even if some delegates are una ble to participate for health reasons. Parties and third
parties should note that the new dates for the Panel's first meeting are firmly set, and delegations
should refrain from requesting the Panel to grant further extensions on health or other grounds.

In light of the foregoing, the Panel will proceed with its first substantive meeting with the parties
and third parties as follows:

• On Monday, 7 December, at 12h00 -15h00 (Geneva time), the Panel will convene a test
session with all participants from the parties and the third parties.

• On Tuesday-Wednesday, 8-9 December, at 12h00-15h00 (Geneva time), the Panel will begin
its first meeting with the parties. The Panel will first invite the parties to deliver their opening
statements. After the conclusion of the opening statements, the Panel will invite each party
to comment or ask questions to the other parties. The Panel will also invite the parties to
orally present their answers to the advance questions.

• On Thursday, 10 December , at 12h00-15h00 (Geneva time), the Panel will hold the
third-party session. The Panel will not pose questions to any third party. The Panel will give
the parties an opportunity to ask third parties questions about their submissions or
statements. If necessary, the Panel will dedicate an appropriate amount of time to finalize
this session on the following day.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

• On Friday, 11 December, at 12h00-15h00 (Geneva time), the Panel will invite the parties to
orally present their answers to any remaining advance question s. The Panel will also invite
the parties to deliver their closing statements. Thereafter, the Panel will end the first
substantive meeting.

The Panel understands that the individual test sessions on Webex have been completed, and invites
those delegations that still need to resolve certain technical issues prior to the meeting to remain in
touch with the designated person from the Secretariat. The Panel will be in further contact with the
parties and third parties in order to finalize the remaining issues in advance of the meeting.

WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX E
PRELIMINARY RULING
Contents Page
Annex E-1 Preliminary Ruling by the Panel concerning India's allegedly expired
measures dated 9 November 2020
138
Annex E-2 Preliminary Ruling by the Panel concerning India's Marketing and
Transportation Scheme
149
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX E-1
1 PRELIMINARY RULING BY THE PANEL CONCERNING INDIA'S ALLEGEDLY EXPIRED
MEASURES DATED 9 NOVEMBER 2020
1.1 Introduction
1.1 In its first written submission, India sought an early preliminary ruling from the Panel 1 that
certain measures challenged by the complainants in their panel requests fall outside the Panel's
terms of reference because they either expired before, or were enacted after, the Panel's
establishment.2
1.2 Specifically, India considers that, pursuant to Article 6.2 of the DSU, the measures at issue
are only those measures that are in existence at the time of the panel's establishment. 3 India
contends that 11 measures identified in the complainants' panel requests expired before the
establishment of the Panel and therefore fall outside its terms of reference.4 These are the Fair and
Remunerative Price (FRP) for certain sugar seasons, the State Advised Price (SAP) for certain states
in certain sugar seasons, purchase tax remission schemes of certain states, and certain subsidy
schemes. Moreover, India points out that the " Scheme for providing assistance to sugar mills for
expenses on marketing costs including handling, upgrading and other processing costs and costs of
international and internal transport and freight charges on export of sugar" (Marketing and
Transportation Scheme), challenged by the complainants, was introduced on 12 September 2019,
while the Pan el was established on 15 August 2019. Thus, according to India, the Marketing and
Transportation Scheme came into existence after the establishment of the Panel and therefore is
outside the Panel's terms of reference. 5 India requests the Panel to address India's request in an
early ruling such that the Panel process is efficient and does not require consumption of the parties'
resources on issues that are clearly outside the Panel's terms of reference.6
1.3 With respect to the allegedly expired measures, the complainants submit that India
inaccurately characterizes as "measures" certain legal instruments identified in the complainants'
panel requests.7 With respect to India's request regarding the Marketing and Transportation Scheme,
the complainants subm it that, although it was introduced after the Panel's establishment, the
Marketing and Transportation Scheme is within the Panel's terms of reference.8 Regarding the timing
of the preliminary ruling, the complainants submit that since the Panel would be r equired to make
factual findings in addressing India's request, it would not be appropriate to address India's request
through an early ruling.9
1.4 In this preliminary ruling, the Panel considers it appropriate to address India's request
concerning the allegedly expired measures identified in the complainants' panel requests. The Panel
will address India's request regarding the Marketing and Transportation Scheme later in the
proceedings.

1 The Panels in DS579, DS580, and DS581 are herein collectively referred to as "the Panel".
2 India's first written submission, para. 32; India's comments regarding its request for a preliminary ruling,
27 April 2020, para. 4.
3 India's first written submission, para. 37 (quoting Appellate Body Report, EC – Chicken Cuts, para. 156).
4 India's first written submission, paras. 40-42.
5 India's first written submission, para. 44.
6 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 61.
7 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 28; Australia's
comments regarding India 's request for a preliminary ruling, 1 April 2020, para. 6; Guatemala 's comments
regarding India's request for a preliminary ruling, 1 April 2020, para. 10.
8 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 59; Australia 's
comments regarding India 's request for a preliminary ruling, 1 April 2020, para. 65; Guatemala 's comments
regarding India's request for a preliminary ruling, 1 April 2020, para. 44.
9 Australia's comments regarding India 's request for a preliminary ruling, 1 April 2020, para. 22;
Guatemala's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 67.
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

1.2 Article 6.2 of the DSU
1.5 Article 6.2 of the DSU sets out the requirements applicable to a panel request. It provides, in
relevant part:
The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide
a brief summary of the legal basis of the complaint sufficient to present the problem
clearly.
1.6 This provision requires, inter alia, that a panel request (i) identify the specific measures at
issue, and (ii) provide a brief summary of the legal basis of the complaint. Together, these two
elements constitute the "matter referred to the DSB", which forms the basis for a panel's terms of
reference under Article 7.1 of the DSU. 10 The requirements under Article 6.2 are "cent ral to the
establishment of the jurisdiction of a panel".11 A panel request governs a panel's terms of reference
and delimits the scope of the panel's jurisdiction. 12 In addition, by establishing and defining the
jurisdiction of the panel, "the panel reque st also fulfils a due process objective" by providing the
respondent and third parties with notice regarding the nature of the complainant's case and enabling
them to respond accordingly.13
1.7 In assessing whether a panel request is sufficiently precise t o meet the requirements of
Article 6.2 of the DSU, panels must "scrutinize carefully the panel request, read as a whole, and on
the basis of the language used". 14 Whether a panel request complies with the requirements of
Article 6.2 must therefore be deter mined on the face of the panel request 15, on a case -by-case
basis.16 Defects in the request for the establishment of a panel cannot be cured in the subsequent
submissions of the parties during the panel proceedings. However, "in considering the sufficiency of
a panel request, submissions and statements made during the course of the panel
proceedings, … may be consulted in order to confirm the meaning of the words used in the panel
request".17
1.8 Pursuant to Article 6.2, the measures at issue, together with the legal basis of the complaint,
define the jurisdiction of a panel. We recall, in this respect, that a "measure" is "any act or omission
attributable to a WTO Member".18 The "specific measure at issue" under Article 6.2 is the "object of
the challenge, namely, the measure that is alleged to be causing a violation of an obligation
contained in a covered agreement".19
1.9 Measures are usually reflected in legal instruments, which constitute evidence of the existence
or operation of a particular measure. A measure can be contained in one or several legal instruments.
It can also be contained in parts of a legal instrument (e.g. specific sections or provisions of a law),
or in different parts of various legal instruments which, when read together, reveal the existence of
the relevant act or omission. The conceptual distinction between measures and legal instruments
does not necessarily preclude the possibility that some measures may be coterminous with a single

10 Appellate Body Reports, EU – PET (Pakistan ), para. 5.13; US – Countervailing Measures (China) ,
11 Appellate Body Report, US – Countervailing Measures (China), para. 4.6.
12 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.12. See also
Appellate Body Reports, Korea – Pneumatic Valves (Japan), para. 5.4; EC and certain member States – Large
Civil Aircraft, para. 640; US – Countervailing Measures (China), para. 4.6; US – Countervailing and Anti-Dumping
Measures (China), para. 4.6.
13 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.7 (referring
to Appellate Body Reports, Brazil – Desiccated Coconut, p. 22, DSR 1997:I, p. 186; Chile – Price Band System,
14 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.13 (quoting
Appellate Body Report, EC – Fasteners (China), para. 562 (fn omitted)).
15 Appellate Body Reports, Korea – Pneumatic Valves (Japan), para. 5.5; US – Carbon Steel, para. 127;
China - HP-SSST (Japan) / China – HP-SSST (EU), para. 5.13.
16 Appellate Body Reports, Korea – Pneumatic Valves (Japan), para. 5.5; Korea – Dairy, para. 127;
China - Raw Materials, para. 220; US – Countervailing and Anti-Dumping Measures (China), para. 4.17.
17 Appellate Body Report, US – Carbon Steel , para. 127 (referring to Appellate Body Report,
Thailand – H-Beams, para. 95). See also Appellate Body Reports, China – Raw Materials , para. 220;
China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.13.
18 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 81.
19 Appellate Body Report, EC – Selected Customs Matters, para. 130.
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legal instrument. 20 In a dispute, a Member may thus challenge a legal instrument as such and
identify it as a measure at issue. 21 However, such exact identity between the challenged measure
and the legal instrument containing it does not alter the conceptual difference between a measure
and a legal instrument. As a general rule, to be within a panel's terms of reference, the measure
identified in the complainant's panel request must be in force at the time of the panel's
establishment.22 By contrast, legal instruments implementing the challenged measure may be
withdrawn, amended or newly introduced over time.
1.10 Accordingly, a distinction can be drawn between measures at issue and evidence produced in
support of a claim of inconsistency.23 While there are temporal limitations on the measures that may
be within a panel's terms of reference, such limitations do not apply in the same way to evidence.
Evidence in support of a claim challenging measures that are within a pane l's terms of reference
may pre-date or post-date the establishment of the panel. A panel is not precluded from assessing
a piece of evidence for the mere reason that it pre-dates or post-dates the panel's establishment. A
panel enjoys a margin of discretio n in determining the relevance and probative value of a piece of
evidence that pre-dates or post-dates its establishment.24 A panel may consider a piece of evidence
that expired before, or came into existence after, the panel's establishment to be relevant to its
assessment of whether the measure at issue was inconsistent with the relevant provisions of the
covered agreements at the time of the panel's establishment.
1.3 Whether certain elements in the complainants' panel requests are measures that
have expired
1.11 India submits that, pursuant to Article 6.2 of the DSU, the measures within a panel's terms of
reference are those identified in the panel request. 25 India considers that the measures at issue
under Article 6.2 of the DSU are only those measures that were in existence when the panel was
established.26
1.12 India argues that there is no distinction between a measure and a legal instrument reflecting
that measure.27 In India's view, the following measures expired before the establishment of the
Panel and thus are outside the Panel's terms of reference28:
Regarding domestic support to sugarcane Regarding export subsidies to sugar
1. "[M]easures notifying the FRP for the
sugar seasons 2014-15 and 2015-16"
10. Scheme for Extending Production
Subsidy to Sugar Mills for the 2015-16
sugar season
2. Scheme for Extending Soft Loan to
Sugar Mills for the 2014-15 sugar
season
11. Raw Sugar Export Incentive Scheme for
the 2014-15 sugar season
3. SAP with respect to state of Andhra
Pradesh including for the sugar seasons
2015-16 and 2016-17

20 As the panel in US – Shrimp (Viet Nam) noted, "a measure may be identified either by its form
(e.g. name, number, date and place of promulgation of a law or regulation, etc.) or by its substance (e.g. by
providing a narrat ive description of the nature of the measure)." (Panel Report, US – Shrimp (Viet Nam) ,
para. 7.50)
21 For instance, in EC – Fasteners (China), one of the challenged measures was a specific provision of a
legal instrument adopted by the European Union, namely, Article 9(5) of the EU's Basic Anti-Dumping Regulation,
which contained rules on the calculation of dumping margins for exporters from what were considered
non-market economy countries. (Panel Report, EC – Fasteners (China), para. 2.1)
22 However, measures that have expired or have been amended after the panel's establishment may also
fall within the panel's terms of reference. (Appellate Body Reports, Chile – Price Band System, paras. 139-144;
EU – PET (Pakistan) paras. 5.19 and 5.51)
23 Panel Report, China – Agricultural Producers, para. 7.89.
24 Appellate Body Report, EC – Selected Customs Matters, para. 188. As the panel in China – Agricultural
Producers noted, "evidence reflects the operation of the measures within a given time -period". (Panel Report,
China – Agricultural Producers, para. 7.89)
25 India's first written submission, para. 36.
26 India's first written submission, para. 37 (quoting Appellate Body Report, EC – Chicken Cuts, para. 156).
27 India's comments regarding its request for a preliminary ruling, 27 April 2020, paras. 10-11, 19, and 27.
28 India's first written submission, paras. 40-42.
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Regarding domestic support to sugarcane Regarding export subsidies to sugar
4. SAP with respect to the state of
Haryana for the sugar seasons
2014-15, 2015-16, 2017-18

5. SAP with respect to the state of Punjab
for the sugar seasons 2014-15,
2015-16, 2017-18

6. SAP with respect to the state of Tamil
Nadu for the sugar seasons 2014-15,
2015-16, 2017-18

7. SAP with respect to the state of Uttar
Pradesh for the sugar season 2015-16

8. SAP with respect to the State of Bihar29
9. Purchase tax remission schemes of
certain states, namely, Andhra Pradesh,
Bihar, Maharashtra, Telangana, and
Uttar Pradesh

1.13 With respect to the purchase tax remission schemes of certain states, India relies on the on
Gazette of India, Notification No. 1/2018 (Goods and Services Tax Compensation), G.S.R. 1116(E),
Ministry of Finance, Department of Revenue of 14 November 2018 and sub mits that, with the
introduction of the Central Government Goods and Service Tax (GST) in 2017, the purchase tax
remission has been discontinued with effect from 14 November 2018. 30 India also refers to the
Communication F. No. 21(3)/2019 -SP-I of the Ministry of Consumer Affairs, Food & Public
Distribution, Department of Food & Public Distribution of 18 March 2020 to demonstrate that the
FRPs for the 2014-15 and 2015-16 sugar seasons have expired and were not in force at the date of
the Panel's establishment and that the state of Bihar does not have an SAP.31
1.14 The complainants respond that India erroneously equates the measures at issue with the legal
instruments through which the measures are implemented. 32 The complainants argue that their
panel requests identify the measures at issue (as, for example, FRPs, SAPs, and other non -exempt
domestic support measures) that are consistently imposed by India. According to the complainants,
the legal instruments id entified in their panel requests are evidence or manifestations of the
challenged measures.33 According to the complainants, even if some of the legal instruments have
expired, this does not mean that the measures have ceased to exist. 34 Brazil additionally submits
that, even assuming arguendo that certain legal instruments constituted measures and had expired,
the Panel should still make a finding regarding such measures to prevent their re -introduction and
circumvention of WTO rules by India.35

29 While India does not refer to the SAP in the state of Bihar in Section IV of its first written submission
titled "Request for Preliminary Ruling", paragraph 30 of India's first written submission states that " alleged SAP
for the States of A ndhra Pradesh, Bihar and Tamil Nadu do not fall within the Panel’s terms of reference. " In
addition, footnote 49 to India's first written submission states that "[t]he State of Bihar does not announce SAP".
In responding to Panel question No. 2, India poin ts out that "Australia has failed to identify that India has also
sought to exclude SAP for the state of Bihar ". In light of these statements, we understand India to argue that
the SAP for the state of Bihar is also outside the Panel's terms of reference. (See India's first written submission,
30 India's first written submission, para. 43 ( referring to Notification from the Ministry of Finance of 14
November 2018 (Goods and Services Tax Compensation) (Exhibit IND-5)).
31 India's first written submission, para. 41 and fn 49 to para. 47 (referring to Communication from the
Government of India of 18 March 2020 (Exhibit IND-4)).
32 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 28-29;
Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 20-21 and 23;
Guatemala's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 10.
33 Brazil's comments regarding India 's request for a preliminary ruling, 1 April 2020 , paras. 30 -31;
Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 21-22; Guatemala's
comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 15-17.
34 Australia's comments regarding India's request for a preliminary ruling , 1 April 20 20, paras. 12-13;
Guatemala's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 23.
35 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 39-46.
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1.15 Brazil and Australia point out that the Communication from the Government of India of
18 March 2020, which India refers to in support of its assertion that certain measures have expired,
was prepared on 18 March 2020, i.e. one day before India submitted its first written submission and
the preliminary ruling request, and "is nothing more than [an] unsupported assertion".36 Guatemala
submits that the Communication reflects India's erroneous view that a legal instrument is "'no
longer in force' when payments unde r the relevant instruments have been fully made by the
Government to sugar mills, or when sugar mills have no pending dues vis-à-vis sugarcane
farmers".37
1.16 India's request for a preliminary ruling and the complainants' counter -arguments raise the
issue of the relationship between measures and legal instruments. Thus, we start by examining
whether the elements in the complainants' panel requests identified by India are, as India argues,
measures that have expired. In doing so, we will examine the complainants' panel requests, on their
face, read as a whole, and on the basis of the language used.38
1.17 As a preliminary observation, we note Brazil's argument that India's selection of elements in
the complainants' panel requests, which India considers to be measures that have expired, is
somewhat inconsistent. India does not refer to all the elements in the complainants' panel requests
that have expired. Rather, as Brazil points out, "[w]hile India objects to Panel review of certain legal
instruments in some sugar seasons, it does not object to review of other instruments pertaining to
the same sugar season, or to equivalent instruments in all seasons." 39 Indeed, while India argues
that FRPs for the sugar seasons 2014 -15 and 2015-16 are outside the Panel's te rms of reference,
India does not take issue with the FRPs for the sugar seasons 2016-17 and 2017-18. Likewise, India
considers to be outside the Panel's terms of reference the SAPs provided by the states of Haryana
and Punjab for the sugar seasons 2014 -15, 2015-16, 2017 -18, but not for the sugar
season 2016-17. In response to the complainants' argument regarding this alleged inconsistency in
its arguments, India states that it does not take issue with the Panel's terms of reference with
respect to the measures concerning the 2018-19 sugar season.40
1.18 We now turn to examine how the elements identified by India are reflected in each of the
complainants' panel requests.
1.3.1 Brazil's panel request
1.19 Sections II and III of Brazil's panel request are titled "Domestic Support Measures for
Sugarcane and Sugar" and "Export Subsidies Pertaining to Sugar and Sugarcane", respectively.
Section II of Brazil's panel request, titled "Domestic Support Measures for Sugarcane and Sugar",
identifies "[t]he domestic support measures and programs for sugarcane and sugar" as, inter alia:
 8. Federal-level domestic support for sugarcane in the form of a mandatory minimum
"Fair and Remunerative Price" that Indian sugar mil ls are required to pay sugarcane
producers for any production delivered to the mill. This domestic support is provided
under, including but not limited to, the following legal instruments:
 …
9. State-level domestic support for sugarcane in the form of a mandatory minimum
"State Advised Price" that sugar mills located in the respective Indian State are required
to pay sugarcane producers in that State for any production delivered to the mill. For

36 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020 , para. 40 (referring
to Exhibit IND-4). See also Australia's comments regarding India's request for a preliminary ruling, 1 April 2020,
para. 33.
37 Guatemala's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 27.
38 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.13 (quoting
Appellate Body Report, EC – Fasteners (China), para. 562 (fn omitted)).
39 Brazil's comments regarding India's request for a preliminary ruling, 4 May 2020, para. 9. (fns omitted,
emphasis original)
40 According to India, the fact that these measures were in existence at the time of the Panel's
establishment has no consequence for those measures that India has identified to have expired at the time of
the establishment of the Panel. (India's response to Panel question No. 2, p. 6)
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each of the identified States, this domestic support is provided under, including but not
limited to, the following legal instruments:
…
11. Federal-level and State-level domestic support for sugarcane and sugar in the form
of various measures by the Federal and State governments in India to supp ort the
production of sugarcane and sugar under, including but not limited to, the following
legal instruments[.]41
1.20 We understand that the underlined parts refer to what Brazil considers to be the measures at
issue. India does not take issue with the overall description of the measures indicated above. The
identification of each of these measures is followed by a list of legal instruments that implement
them.42 The elements in the complainants' panel requests identified by India as "measures" that
have expired are listed in Brazil's panel request under the rubric of "legal instruments" in which the
relevant measure is allegedly reflected.
1.21 As noted, India identifies certain elements in the complainants' panel requests as "measures
notifying the FRP for the sugar seasons 2014 -15 and 2015 -16" that have expired. Brazil's panel
request classifies the legal instruments that reflect the federal-level domestic support for sugarcane
in the form of an FRP into three categories: (i) the legal basis for the FRP (Essential Commodities
Act (1955) and Sugarcane (Control) Order (1966) 43; (ii) annual communications fixing the FRP 44;
and (iii) notifications fixing the FRP to be paid for sugarcane on a mill -specific basis. 45
Communications introducing the FRP for the sugar seasons 2014-15 and 2015-16 are listed as legal
instruments under the second category, i.e. annual communications fixing the FRP. 46 Accordingly,
as regards the FRP, the elements that India identifies as "measures" that have expired are identified
in Brazil's panel request as "legal instruments" that reflect the federal -level domestic support for
sugarcane in the form of an FRP.
1.22 India further identifies SAPs with respect to certain states and for certain sugar seasons as
"measures" that have expired.47 As noted, the relevant measure identified in Brazil's panel request
is the state-level domestic support for sugarcane in the form of an SAP.48 According to Brazil's panel
request, the legal instruments that reflect this measure include, inter alia, the: (i) SAP with respect
to the state of Andhra Pradesh including for the sugar seasons 2015-16 and 2016-1749; (ii) SAP with
respect to the state of Bihar50; (iii) SAP with respect to the state of Haryana for the sugar seasons
2014-15, 2015-16, and 2017-1851; (iv) SAP with respect to the state of Punjab for the sugar seasons
2014-15, 2015-16, and 2017-1852; (v) SAP with respect to the state of Tamil Nadu for the sugar
seasons 2014-15, 2015-16, and 2017-1853; and (vi) SAP with respect to the state of Uttar Pradesh
for the sugar season 2015 -16.54 Consequently, as regards the SAPs, the elements that India
identifies as "measures" that have expi red are identified in Brazil's panel request as "legal
instruments" implementing the SAPs in certain states for certain sugar seasons.
1.23 As regards the Scheme for Extending Soft Loan to Sugar Mills for the 2014–15 sugar season,
it is listed as a legal instrument implementing the measure identified as federal-level and state-level
domestic support for sugarcane and sugar. 55 With respect to the purchase tax remission schemes,

41 Request for the establishment of a panel by Brazil, WT/DS579/7 (Brazil's panel request), paras. 8, 9,
and 11. (underlining original)
42 These legal instruments are identified by reference to their title, as well as, in most cases, the date of
adoption and the issuing authority.
43 Brazil's panel request, paras. 8.a and b.
44 Brazil's panel request, para. 8.c.
45 Brazil's panel request, para. 8.d.
46 Brazil's panel request, para. 8.c.
47 See para. 1.12 above.
49 Brazil's panel request, para. 9.a.
50 Brazil's panel request, para. 9.b.
51 Brazil's panel request, para. 9.d.
52 Brazil's panel request, para. 9.h.
53 Brazil's panel request, para. 9.i.
54 Brazil's panel request, para. 9.l.
55 Brazil's panel request, para. 11.b.
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Brazil's panel request refers only to the one granted by the state of Andhra Pradesh.56 Brazil's panel
request lists the purchase tax remission scheme of Andhra Pradesh as a legal instrument
implementing federal-level subsidized loans for the production of sugarcane or sugar.57
1.24 With regard to the alleged export subsidies for sugar, we recall that India identifies the Scheme
for Extending Production Subsidies to Sugar Mills for the sugar season 2015-16 and the Raw Sugar
Export Incentive Scheme for the 2014–15 sugar season as expired "measures". We note that Section
III of Brazil's panel request, titled "Export Subsidies Pertaining to Sugar and Sugarcane", identifies
as measures, inter alia, federal-level export subsidies pertaining to sugar or sugarcane. 58 This is
followed by an il lustrative list of legal instruments that reflect this measure, which includes the
Scheme for Extending Production Subsidies to Sugar Mills for the sugar season 2015 -16.59 Finally,
we note that Brazil's panel request does not refer to Raw Sugar Export Ince ntive Scheme for the
2014–15 sugar season.
1.25 In light of the above, we do not agree with India that the elements in Brazil's panel request
identified by India constitute the "measures" challenged by Brazil. Rather, our examination of Brazil's
panel request reveals that the elements identified by India have been presented in Brazil's panel
request as legal instruments containing the challenged measures.
1.26 The fact that some of these legal instruments may have expired does not mean that the Panel
cannot rely on them as evidence of the existence of the measures identified in Brazil's panel request.
As noted above, a panel enjoys a margin of discretion in determining the relevance and probative
value of a piece of evidence that expired before its establishment.60 In any event, it is the measures
at issue as identified in the panel request, not the legal instruments containing such measures, that
define the terms of reference of a panel. In this regard, we note that India does not claim that any
of the measures identified in Brazil's panel request are outside the Panel's terms of reference.
1.27 Consequently, we reject India's argument that the elements in Brazil's panel request identified
by India fall outside the Panel's terms of reference.
1.3.2 Australia's panel request
1.28 Sections II and IV of Australia's panel request are titled "Domestic support for sugarcane and
sugar" and "Export subsidies for sugar and sugarcane", respectively. Section II of Australia's panel
request identifies "the specific measures through which India provides domestic support in favour of
producers of sugarcane and sugar". 61 This is followed by a list of eight measures, which include:
(i) "[f]ederal-level domestic support for sugarcane provided through a federal adminis tered price,
the 'Fair and Remunerative Price' (FRP) "62; (ii) " [s]tate-level domestic support for sugarcane
provided through a state administered price, the 'State Advised Price' (SAP) "63; and (iii) other
non-exempt domestic support measures (including fed eral-level support through subsidised loans
and state-level support involving tax rebates or exemptions). 64 India does not take issue with the
overall description of the measures indicated above. Annex A to Australia's panel request contains a
"List of instruments and documents reflecting the measures at issue".65
1.29 With respect to the elements in the complainants' panel requests that India identifies as
"measures notifying the FRP for the sugar seasons 2014 -15 and 2015 -16" that have expired, we
note th at those elements are listed as legal instruments implementing the FRP identified in

56 As noted by India, Brazil has not put forward any specific arguments with respect to the purchase tax
remission schemes. (India's comments regarding its request for a preliminary ruling, 27 April, para. 39)
57 Brazil's panel request, para. 11.d.
59 Brazil's panel request, para. 14.a.
60 See para. 1.10 above.
61 Request for the establishment of a panel by Australia, WT/DS580/7 (Australia's panel request), para. 7.
62 Australia's panel request, para. 8. (underlining original)
63 Australia's panel request, para. 9. (underlining original)
64 This category comprises six measures listed in p aragraphs 11-15 of Australia's panel request. (See
Australia's panel request, paras. 11 -15) We note that, like in that of Brazil, the underlined parts in Australia's
panel request refer to what Australia considers to be the measures at issue.
65 Annex A to Australia's panel request, paras. 1-8. These instruments are identified by reference to their
title, as well as, in most cases, the date of adoption and the issuing authority.
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paragraph 1 of Annex A to Australia's panel request. 66 Similar to that of Brazil, Australia's panel
request classifies the legal instruments that reflect the federal-level domestic support for sugarcane
in the form of an FRP into three categories: (i) the legal basis for the FRP (the Essential Commodities
Act (1955) and Sugarcane (Control) Order (1966)) 67; (ii) annual communications fixing the FRP 68;
and (iii) notifications fixing the FRP to be paid on a mill-specific basis.69 Communications introducing
the FRP for the sugar seasons 2014-15 and 2015-16 are listed as legal instruments under the second
category, i.e. annual communications fixing the FRP.70
1.30 With respect to the SAPs for certain states in certain sugar seasons, which India identifies as
"measures" that have expired, we note that paragraph 2 of Annex A to Australia's panel request
contains the list of legal instruments implementing the state -level domestic support in the form of
SAPs.71 The elements India identified are listed in Australia's panel request among the legal
instruments implementing the SAPs. These are the: (i) SAP with respect to state of Andhra Pradesh
including for the sugar seasons 2015-16 and 2016-1772; (ii) SAP with respect to the state of Bihar73;
(iii) SAP with respect to the state of Haryana for the sugar seasons 2014 -15, 2015 -16, and
2017-1874; (iv) SAP with respect to the state of Punjab for the sugar seasons 2014 -15, 2015-16,
and 2017-1875; (v) SAP with respect to the state of Tamil Nadu for the sugar seasons 2014 -15,
2015-16, and 2017-1876; and (vi) SAP with respect to the state of Uttar Pradesh for the sugar season
2015-16.77
1.31 With respect to the Scheme for Extending Soft Loan to Sugar Mills for the 2014 –15 sugar
season, we note that it is listed among "instruments and documents" that reflect the measure that
Australia identified as "[f]ederal -level domestic support for sugarcane and sugar provided through
subsidised loans".78
1.32 With respect to the purchase tax remission schemes of Andhra Pradesh, Bihar, Maharashtra,
Telangana, and Uttar Pradesh, we note that they are listed among the "instruments and documents"
implementing the measure identified as "[s]tate-level domestic support for sugarcane and sugar".79
1.33 With regard to the alleged export subsidies for sugar, we note that Section IV of Australia's
panel request, titled "Export subsidies for sugar and sugarcane", identifies the measures at issue as
"[f]ederal-level measures pertaining to sugar or sugarcane which provide subsidies contingent upon
export performance , through, operating individually, collectively, or in combination with each
other".80 This is followed by a list of five categories of measures.81 Australia's panel request further

66 Annex A to Australia's panel request, para. 1(c)(iv)-(v).
67 Annex A to Australia's panel request, paras. 1(a) and (b).
68 Annex A to Australia's panel request, para. 1(c).
69 Annex A to Australia's panel request, para. 1(d).
70 Annex A to Australia's panel request, para. 1(c)(iv)-(v).
71 Annex A to Australia's panel request, para. 2.
72 Annex A to Australia's panel request, para. 2(a)(ii).
73 Annex A to Australia's panel request, para. 2(b).
74 Annex A to Australia's panel request, para. 2(c)(iv) and (v). We note that paragraph 2(c)(iv) of Annex A
refers only to the SAPs in the State of Haryana for the sugar seasons 2014-15, 2015-16, and 2016-17. Paragraph
2(c)(v) of Annex A refers to "any other documents, state -level legal instruments, including successor
instruments, and any amendments thereto, that provide for a mandatory minimum price for sugarcane that is
higher than the FRP in the State of Haryana for the [sugar season] … 2017-18".
75 Annex A to Australia's panel request, para. 2(f)(iii) and (iv). We note that paragraph 2(f)(iii) of Annex A
refers only to the SAPs in the State of Punjab for the sugar seasons 2014-15, 2015-16, and 2016-17. Paragraph
2(f)(iv) of Annex A refers to " any other documents, state -level legal instruments, including successor
instruments, and any amendments thereto, that provide for a mandatory minimum price for sugarcane that is
higher than the FRP in the State of Punjab for the [sugar season] 2017-18".
76 Annex A to Australia's panel request, para. 2(g)(v), (vi) and (viii). We note that paragraph 2(g)(viii) of
Annex A refers to " any other documents, state -level legal instruments, including successor instruments, in the
State of Tamil Nadu that provide for a mandatory minimum price for sugarcane that is higher than the FRP during
the [sugar season] … 2017-18".
77 Annex A to Australia's panel request, para. 2(j)(iv).
78 Annex A to Australia's panel request, para. 5(b).
79 Annex A to Australia's panel request, paras. 8(a)(i), 8(b)(i) and (iv), 8(e)(i), 8(g)(i), 8(h)(i), (ii)
and (iv).
80 Australia's panel request, para. 19. (underlining original)
81 Australia's panel request, para. 19(a)-(e). (underlining original)
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indicates that "[t]hese measures are reflected in, but not limited to, the instruments and documents
identified in paragraph 9 of Annex A to this request."82
1.34 Paragraph 9 of Annex A to Australia's panel request identifies the Scheme for Extending
Production Subsidies to Sugar Mills for the sugar season 2015 -16 among the instruments and
documents that contain production subsidies contingent upon export performance.83
1.35 Finally, we observe that the Raw Sugar Ex port Incentive Scheme for the 2014 –15 sugar
season is listed among the instruments and documents that implement the measure identified as
"[f]ederal-level domestic support for sugarcane and sugar provided through financial assistance
towards internal transport, freight, handling and other charges on export".84
1.36 In light of the above, we do not agree with India that the elements in Australia's panel request
identified by India constitute "measures". Rather, our examination of Australia's panel request
reveals that the elements identified by India have been presented in Australia's panel request as
instruments containing the measures at issue.
1.37 For the reasons outlined in paragraph 1.26 above, we reject India's argument that the
elements in Australia's panel request identified by India fall outside the Panel's terms of reference.
1.3.3 Guatemala's panel request
1.38 Sections II and III of Guatemala's panel request are titled "India's domestic support measures
in favour of sugarcane producers and sugar producers" and "India's measures pertaining to sugar
or sugarcane which provide subsidies contingent upon export performance", respectively. Section II
identifies eight measures "through which India provides domestic support in favour of sugarcane
producers and sugar producers".85 These measures include: (i) "[f]ederal-level domestic support in
the form of a federal administered price, the 'Fair and Remunerative Price' ('FRP') "86;
(ii) "[s]tate-level domestic support for sugarcane in the form of a state administered price, the 'State
Advised Price' ('SAP')"87; and (iii) other non-exempt domestic support measures (including federal-
level support through subsidised loans and state -level support involving tax exemptions). 88 India
does not take issue with the overall description of the measures indicated above. Guatemala's panel
request contains an Annex titled "List of instruments and documents containing the measure s at
issue".
1.39 With respect to the elements in the complainants' panel requests that India identifies as
"measures notifying the FRP for the sugar seasons 2014 -15 and 2015 -16" that have expired, we
note that those elements are listed in the Annex to Guatemala's panel request as "instruments and
documents" that reflect the FRP.89 Similar to those of Brazil and Australia, Guatemala's panel request
classifies the legal instruments that reflect the federal -level domestic support for sugarcane in the
form of an FRP into three categories: (i) the legal basis for the FRP (the Essential Commodities Act
(1955) and Sugarcane (Control) Order (1966))90; (ii) annual communications fixing the FRP91; and
(iii) notifications fixing the FRP to be paid on a mill-specific basis.92 Communications introducing the
FRP for the sugar seasons 2014 -15 and 2015-16 are listed as legal instruments under the second
category, i.e. annual communications fixing the FRP.93

83 Annex A to Australia's panel request, paras. 9 and 9(b)(iii).
84 Annex A to Australia's panel request, para. 7(b). (underlining original); Australia's panel request,
para. 14.
85 Request for the establishment of a panel by Guatemala, WT/DS581/8 (Guatemala's panel request),
p. 2.
86 Guatemala's panel request, p. 2, para. 1. (underlining original)
87 Guatemala's panel request, p. 2, para. 2. (underlining original)
88 Guatemala's panel request, p. 2, paras. 4 -8. We note that, like in those of Brazil and Australia, the
underlined parts in Guatemala's panel request refer to what Guatemala considers to be the measures at issue.
89 Annex to Guatemala's panel request, para. 1(c)(iv) and (v).
90 Annex to Guatemala's panel request, para. 1(a) and (b).
91 Annex to Guatemala's panel request, para. 1(c)
92 Annex to Guatemala's panel request, para. 1(d).
93 Annex to Guatemala's panel request, para. 1(c).
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1.40 With regard to the SAPs for certain states in certain sugar seasons, which India identifies as
"measures" that have expired, we note that paragraph 2 of the Annex to Guatemala's panel request
contains the list of instruments and documents that reflect the state -level domestic support in the
form of SAPs. The elements identified by India are listed in Guatemala's panel request among legal
instruments implementing the SAPs. These are: (i) SAP with respect to state of Andhra Pradesh
including for the sugar seasons 2015-16 and 2016-1794; (ii) SAP with respect to the state of Bihar95;
(iii) SAP with respect to the state of Haryana for the sugar seasons 2014 -15, 2015 -16, and
2017-1896; (iv) SAP with respect to the state of Punjab for the sugar seasons 2014 -15, 2015-16,
and 2017-1897; (v) SAP with respect to the state of Tamil N adu for the sugar seasons 2014 -15,
2015-16, and 2017-1898; and (vi) SAP with respect to the state of Uttar Pradesh for the sugar season
2015-16.99
1.41 As regards the Scheme for Extending Soft Loan to Sugar Mills for the 2014–15 sugar season,
we note that it is listed among "instruments and documents" that reflect the measure that Guatemala
identified as "[f]ederal-level domestic support for sugarcane and sugar provided through subsidised
loans".100
1.42 With respect to the purchase tax remission schemes of certain states that India has identified
as expired measures, we note that paragraph 8 of the Annex to Guatemala's panel request identifies
the purchase tax remittance schemes of certain states as "instruments and documents" that reflect
the measure identified as "[s]tate-level domestic support for sugarcane and sugar".101
1.43 Section III.A of Guatemala's panel request identifies measures pertaining to sugar or
sugarcane through which India provides subsidies contingent upon export performance as, inter alia,
"[f]ederal-level measures pertaining to sugar or sugarcane that provide subsidies contingent upon
export performance ".102 Paragraph 9 of the Annex to Guatemala's panel request sets out an
illustrative list of the legal instruments and documents that reflect the measures at issue.
1.44 With respect to the Scheme for Extending Production Subsidies to Sugar Mills for the sugar
season 2015-16, we note that the Annex to Guatemala's panel request refers to it as one of the
instruments that reflect the "[f]ederal-level measures pertaining to sugar or sugarcane that provide
subsidies contingent upon export performance".103
1.45 Finally, with respect to the Raw Sugar Export Incentive Scheme for the 2014–15 sugar season,
we note that paragraph 11 of Guatemala's panel request refers to the relevant measures at issue as
"[f]ederal-level assistance and export incentives , including, but not limited to, the instruments
identified in paragraph 11 of the Annex to this request." 104 Thus, the panel request identifies the
measure at issue as "federal-level assistance and export incentives" and refers to the elements listed
in paragraph 11 of the Annex as "instruments", which we interpret to mean instruments that contain
the measure. Paragraph 11 of the Annex to Guatemala's panel request, in turn, reads, in relevant
part:
 11. Federal-level assistance and export incentives, including under Sugar Rules / Sugar
Development Fund (SDF) Rules rule 20B as amended (also referred to as the Raw Sugar
Export Incentive Scheme), including, but not limited to the following: …105
1.46 The text of this paragraph of the Annex to Guatemala's panel request confirms our
understanding of paragraph 11 of the panel request. Like the panel request itself, the Annex
identifies the measure at i ssue as "federal-level assistance and export incentives", and states that

94 Annex to Guatemala's panel request, para. 2(a)(ii) and (iii).
95 Annex to Guatemala's panel request, para. 2(b).
96 Annex to Guatemala's panel request, para. 2(d)(vi)-(vii).
97 Annex to Guatemala's panel request, para. 2(h)(v).
98 Annex to Guatemala's panel request, para. 2(i)(v) and (vii)-(viii).
99 Annex to Guatemala's panel request, para. 2(l)(iv).
100 Annex to Guatemala's panel request, para. 5(b). (underlining original)
101 Annex to Guatemala's panel request, para. 8(a)(i), (c)(i), e(i), (g)(i) and (h)(i) -(ii), (iv), and (vi).
(underlining original)
102 Guatemala's panel request, para. 9. (underlining original)
103 Annex to Guatemala's panel request, para. 9(b)(iv). (underlining omitted)
104 Guatemala's panel request, para. 11. (underlining original)
105 Annex to Guatemala's panel request, para. 11. (footnotes omitted) (underlining original)
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this includes the incentives provided, among others, under the Raw Sugar Export Incentive Scheme.
This introductory language in paragraph 11 of the Annex is followed by a list of sev en legal
instruments that allegedly contain the federal -level assistance and export subsidies maintained by
India. Guatemala has identified the relevant measure at issue as "[f]ederal -level assistance and
export incentives" and referred to the Raw Sugar Export Incentive as a legal instrument containing
this measure.106
1.47 In light of the above, we do not agree with India that the elements in Guatemala's panel
request that India has identified constitute "measures". Rather, our examination of Guatemala's
panel request reveals that the elements identified by India have been presented in Guatemala's
panel request as instruments containing the measures at issue.
1.48 For the reasons outlined in paragraph 1.26 above, we reject India's argument that the
elements in Guatemala's panel request identified by India fall outside the Panel's terms of reference.
1.4 Conclusion
1.49 Our review of the complainants' panel requests demonstrates that the elements in the panel
requests, which India refers to as "measures", are in fact legal instruments that, in the view of the
complainants, contain the measures at issue. We therefore reject India's request to find that the
elements it has identified fall outside our terms of reference. We will examine the relevance and
probative value of these legal instruments in assessing the complainants' claims, in making an
objective assessment in accordance with Article 11 of the DSU.

106 We further note that elements of the Raw Sugar Export Incentive Scheme for the 2014 –15 sugar
season have been identified as instruments implementing the measure at issue. (Annex to Guatemala's panel
request, para. 11(c)-(d))
WT/DS579/R/Add.1 • WT/DS580/R/Add.1 • WT/DS581/R/Add.1

ANNEX E-2
1 PRELIMINARY RULING BY THE PANEL CONCERNING INDIA'S MARKETING AND
TRANSPORTATION SCHEME
1.1 Introduction
1.1 As noted in Annex E-1, in its first written submission, India sought a preliminary ruling by the
Panel that certain measures challenged by the complainants in their panel requests fall outside the
Panel's terms of reference because they either expired befo re, or were enacted after, the Panel's
establishment.1 As part of its request for a preliminary ruling, India argued that the Marketing and
Transportation Scheme came into existence after the establishment of the Panel and therefore is
outside the Panel's terms of reference.2
1.2 On 9 November 2020, the Panel issued the first part of its preliminary ruling regarding the
allegedly expired measures, including the Panel's reasoning to the parties and third parties . On
14 December 2020, the Panel issued the second part of its preliminary ruling regarding the
Marketing and Transportation Scheme to the parties. The Panel found that the Marketing and
Transportation Scheme fell within its terms of reference and informed the parties that the reasoning
for the ruling would be included in its Interim Report.
1.3 This section contains the reasoning for the second part of the Panel's preliminary ruling. We
first summarize the parties' arguments. We then address India's argument that a panel's terms of
reference are limited to the measures that were in existence at the time of the panel's establishment.
Thereafter, we assess whether the Marketing and Transportation Scheme is within the Panel's terms
of reference. In this context we examine whether: (i) the co mplainants' panel requests are broad
enough to encompass the Marketing and Transportation Scheme; (ii) the Marketing and
Transportation Scheme is of the same essence as the assistance schemes explicitly referred to in
the complainants' panel requests; and (iii) inclusion of the Marketing and Marketing and
Transportation Scheme in the Panel's terms of reference would contribute to the prompt settlement
of, and securing a positive solution to, the present disputes pursuant to Articles 3.3 and 3.7 of the
DSU.
1.2 Arguments of the parties
1.4 India argues that since the Marketing and Transportation Scheme came into existence after
the establishment of the Panel, it is not within the Panel's terms of reference. 3 India observes that
the Marketing and Transportation Scheme challenged by the complainants "was introduced by the
Government of India on 12 September 2019 for the sugar season 2019-20 (i.e. 1st October 2019 to
30th September 2020)", while the Panel was established on 15 August 2019.4
1.5 India notes that a panel's terms of reference are limited to the measures that were in existence
at the time of the panel's establishment. 5 In India's view, there is no legal basis in the text of the
DSU to include in a panel's terms of reference measures that were int roduced after the panel's
establishment.6 In response to the complainants' arguments regarding exceptions to this general
rule identified in previous disputes, India submits that such exceptions do not apply in the present

1 India's first written submission, para. 32; comments regarding its request for a preliminary ruling ,
27 April 2020, para. 4.
2 India's first written submission, para. 44.
3 India's first writte n submission, para. 44; comments regarding its request for a preliminary ruling ,
27 April 2020, para. 60.
4 India's first written submission, para. 44 (referring to Notification of 1 2 September 2019,
(Exhibit JE-114)); comments regarding its request for a preliminary ruling, 27 April 2020, para. 44.
5 India's first written submission, para. 46; response to Panel question No. 9.
6 India's comments regarding its request for a preliminary ruling , 27 April 2020, para . 14; response to
Panel question No. 12.
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disputes.7 In this regard, India submits three main arguments based on the criteria developed in the
disputes referred to by the complainants.
1.6 First, India argues that the Marketing and Transportation Scheme is not a successor or
amendment to the measures identified in the complainants' panel requests. 8 In this regard, India
notes, first, that a panel may "examine a legal instrument enacted after the establishment of the
panel that amends a measure identified in the panel request". 9 However, in India's view, the
Marketing and Transportation Scheme does n ot amend any of the measures identified in the
complainants' panel requests. India further submits that the fact that the Marketing and
Transportation Scheme was adopted after the adoption of certain measures identified in the
complainants' panel requests does not necessarily make it a "successor" or an "amendment" of those
measures.10
1.7 Second, India contends that the Marketing and Transportation Scheme is not of the "same
essence" as those measures identified in the complainants' panel requests.11According to India the
Marketing and Transportation Scheme is a measure that is separate and distinct from the measures
identified in the complainants' panel requests, in terms of: (i) the nature of the assistance provided;
(ii) eligibility criteria for obtainin g that assistance; and (iii) the amount of assistance provided and
the methodology to determine such amount.12
1.8 With respect to the nature of the assistance, India observes that the Buffer Stock Scheme was
introduced with a view to offsetting the cost o f cane incurred by sugar mills and reimbursing the
carrying cost of maintenance of buffer stocks by sugar mills. 13 By contrast, India underscores that
the Marketing and Transportation Scheme "has been introduced specifically with the view of
providing WTO-consistent payments to offset transport and marketing costs incurred by sugar mills
carrying out the export of sugar". 14 With respect to the eligibility criteria, India points out that the
Production Assistance Scheme requires mills with ethanol production capacity to have supplied a
certain amount of ethanol to oil marketing companies. In addition, according to India, eligibility for
the Buffer Stock Scheme is dependent on the actual maintenance of buffer stock by mills during the
designated period. By con trast, India points out that, under the Marketing and Transportation
Scheme, eligibility requirements "are set so as to cover sugar mills that have actually incurred …
marketing and transport expenses by exporting sugar in accordance with their MAEQs". 15 With
respect to the amount of assistance, India submits that, unlike other schemes, which provide
different amounts of assistance calculated on the basis of the amount of sugar cane crushed, the
Marketing and Transportation Scheme "provides assistance towar ds marketing and transport costs
at a specified rate".16
1.9 Third, India maintains that including the Marketing and Transportation Scheme in the Panel's
terms of reference is not necessary to secure a positive solution to the dispute because the Marketing
and Transportation Scheme is not a recurring measure. In India's view, if any of the measures
alleged to constitute export subsidies in the present disputes are found to be WTO -inconsistent,
subsequently adopted measures that share similar characteristics may be appropriately addressed
during the compliance stage of these disputes.17

7 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 15.
8 India's comments regarding its request for a preliminary ruling, 27 April 2020, paras. 47-50.
9 India's comments regard ing its request for a preliminary ruling , 27 April 2020, para. 47 (referring to
Appellate Body Report, Chile – Price Band System). (emphasis original)
10 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 49.
11 India's comments regarding its request for a preliminary ruling, 27 April 2020, paras. 51-56.
12 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 52.
13 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 53.
14 India's comments regarding its request for a preliminary ruling , 27 April 2020, para. 53. India notes
that paragraph 3(i)(a) of the Marketing and Transportation Scheme envisages payment s to sugar mills at a
specified rate for expenses incurred for the marketing, handling, quality up -gradation, debagging, re-bagging,
and other processing costs of sugar. India further notes that paragraph 3(i)(b) envisages payment s for internal
transport and freight charges including loading, unloading, and fobbing , at a specified rate, while paragraph
3(i)(c) provides for payments to sugar mills at a specified rate for ocean freight costs incurred as a result of
shipments from Indian p orts to destination countries. (Ibid . referring to Notification of 12 September 2019,
(Exhibit JE-114))
15 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 54.
16 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 55.
17 India's comments regarding its request for a preliminary ruling, 27 April 2020, paras. 57-59.
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1.10 In response to India's arguments, the complainants submit that the Appellate Body in
EC - Chicken Cuts set out "a general rule" that a panel's terms of reference encompass measures
that are in existence at the time of the panel's establishment. 18 The complainants argue, however,
that this does not prevent a measure adopted after the panel's establishment from falling within the
panel's terms of reference. 19 Referring to the criteria established in past cases for the inclusion in
the panel's terms of reference of measures that postdate a panel's establishment, the complainants
assert that the Marketing and T ransportation Scheme falls within this Panel's terms of reference
because: (i) the texts of the complainants' respective panel requests are broad enough to encompass
the Marketing and Transportation Scheme20; (ii) the Marketing and Transportation Scheme is of the
same essence as the export subsidies identified in the complainants' panel requests 21; and (iii) the
inclusion of the Marketing and Transportation Scheme in the Panel's terms of reference is necessary
for the prompt settlement of, and to secure a positive solution to, the disputes.22
1.11 Regarding the first criterion, the complainants point out that their panel requests define the
measures at issue as federal -level export subsidies pertaining to sugar and sugarcane, which is
followed by a list of l egal instruments that implement them, including any amendments, related,
successor, replacement, or implementing instruments. 23 In the complainants' view, the scope of
their panel requests is therefore broad enough to encompass the Marketing and Transporta tion
Scheme.24
1.12 Regarding the second criterion, the complainants argue that the Marketing and Transportation
Scheme is, in essence, the same as the measures identified in the complainants' panel requests. 25
In this regard, Brazil submits that the Marketing and Transportation Scheme is of the same essence
as the Scheme for Assistance to Sugar Mills for the 2018-19 sugar season. According to Brazil, "both
policies share the same policy purpose, and the same design, structure and impact." 26 In addition,
Brazil submits that the Marketing and Transportation Scheme "shares the same policy objective as
all the other export subsidies that Brazil identified in its panel request". 27 In Brazil's view, "India
tries to hide the fundamental sameness of the [Marketing and Transportation] Scheme and the other
export subsidies by atomizing the analysis and focusing on immaterial differences".28
1.13 Australia submits that the Marketing and Transportation Scheme has the same purpose, and
exhibits the same design and structural features, as the subsidy programmes that Australia listed in

18 Brazil's comments regarding its request for a preliminary ruling , 1 April 2020, para. 15; Australia's
comments regarding India's request for a preliminary ruling , 1 April 2020, para. 54; Guatemala's comments
regarding India's request for a preliminary ruling , 1 April 2020, para. 41 (quoting Appellate Body Report,
EC - Chicken Cuts, para. 156).
19 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 50; Australia's
comments regarding India's request for a preliminary ruling , 1 April 2020, para. 55; Guatemala's comments
regarding India's request for a preliminary ruling, 1 April 2020, paras. 40-42.
20 Brazil's comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 60 -63;
Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 66-72; Guatemala's
comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 45-55.
21 Brazil's comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 64 -70;
Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 73-80; Guatemala's
comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 56-58.
22 Brazil's comments regarding India's request for a preliminary ruling , 1 April 2020, para. 71 -74;
Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 81-83; Guatemala's
comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 59-61.
23 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 61 (referring
to Brazil's panel request, paras. 14-16); Australia's comments regarding India's request for a preliminary ruling,
1 April 2020, paras. 67 -70 (referring to Australia's panel reque st, paras. 18 -20 and para. 9 of Annex A) ;
comments regarding India's request for a preliminary ruling , 4 May 2020, para. 30; Guatemala's comments
regarding India's request for a preliminary ruling, 1 April 2020, paras. 46 -51 (referring to Guatemala's panel
request, para. 9 of Section III.A).
24 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 60 and 63;
Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 72; Guatemala's
comments regarding India's request for a preliminary ruling, 1 April 2020, para. 52.
25 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 64; Australia's
comments regarding India's request for a preliminary ruling , 1 April 2020, para. 73; Guatemala's comments
regarding India's request for a preliminary ruling, 1 April 2020, para. 58.
26 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 67.
27 Brazil's comments regarding India's request for a preliminary ruling, 4 May 2020, para. 35.
(emphasis original)
28 Brazil's comments regarding India's request for a preliminary ruling, 4 May 2020, para. 45.
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in its panel request. In particular, Australia points out that eac h of these programmes is "designed
to achieve the policy purpose of assisting sugar mills to pay down sugarcane price dues by providing
direct subsidies" and "embod[ies] the same design and structure, exhibiting the same two core
constituent elements": (i) a direct payment, which is tied to (ii) an export quota, usually by requiring
sugar mills to comply with export requirements as an eligibility condition for receiving the payment.29
To Australia, the Marketing and Transportation Scheme "is merely the late st (albeit renamed)
iteration of India's sugar export subsidy policy of tying direct payment schemes to an export quota
program, repeated annually on a seasonal basis".30 Australia maintains that the Panel should focus
on the core elements of the measure a nd avoid being distracted by India's attempt to draw the
Panel's focus away from such core elements.31
1.14 In Guatemala's view, the structure, operation and constituent elements of the subsidies
identified in Guatemala's panel request and those of the Mar keting and Transportation Scheme are
the same, and the only notable difference is the titles of the respective programmes. 32 Guatemala
disagrees with India's view that two measures can be of the same essence only if they are identical
in all respects, incl uding the eligibility requirements that have not been challenged by Guatemala
and the methodology for calculating the amount of the subsidy.33
1.15 Regarding the third criterion, the complainants consider that including the Marketing and
Transportation Scheme in the Panel's terms of reference is necessary to secure a prompt settlement
of, and positive solution to, the disputes in accordance with the principles articulated in Articles 3.3
and 3.7 of the DSU.34
1.3 Whether measures introduced after a panel's establishment may fall within the
panel's terms of reference
1.16 India argues that there is no legal basis in the text of the DSU to include in a panel's terms of
reference measures introduced after the panel's establishment. The complainants subm it that, in
certain circumstances, measures enacted after a panel's establishment may fall within the panel's
terms of reference.
1.17 Article 6.2 of the DSU reads in relevant part:
The request for the establishment of a panel shall be made in writing. It shall
indicate whether consultations were held, identify the specific measures at issue
and provide a brief summary of the legal basis of the complaint sufficient to present
the problem clearly.
1.18 As described in Annex E -1, the requirements of Article 6.2 of the DSU are "central to the
establishment of the jurisdiction of a panel" 35 in that the panel request governs a panel's terms of
reference and delimits the scope of the panel's jurisdiction. 36 A panel's terms of reference are to

29 Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 74-75
(referring to Exhibits JE-74, JE-75, JE-76, JE-77, JE-78, JE-107, JE-108, JE-109, and JE-112).
30 Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 80.
31 Australia's comments regarding India's request for a preliminary ruling, 4 May 2020, para. 64.
32 Guatemala's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 57.
33 Guatemala's comments regarding India's request for a preliminary ruling , 4 May 2020, para. 48. In
Guatemala's view, none of these aspects go to the measure's essence. Rather, the essential element of the
measure is that payments are available to sugar mil ls that export sugar according to export quotas pre -
determined by the Indian Government on a mill-wide basis. (Ibid. para. 49)
34 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 71 -74;
comments regarding India's r equest for a preliminary ruling, 4 May 2020, paras. 46 -50; Australia's comments
regarding India's request for a preliminary ruling, 1 April 2020, paras. 81-83; comments regarding India's request
for a preliminary ruling, 4 May 2020, paras. 79 -83; Guatemala 's comments regarding India's request for a
preliminary ruling, 1 April 2020, paras. 59 -61; comments regarding India's request for a preliminary ruling,
4 May 2020, paras. 51-56.
35 Appellate Body Report, US – Countervailing Measures (China), para. 4.6.
36 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.12. See also
Appellate Body Reports, Korea – Pneumatic Valves (Japan), para. 5.4; EC and certain member States – Large
Civil Aircraft, para. 640; US – Countervailing Measures (China), para. 4.6; US – Countervailing and Anti-Dumping
Measures (China), para. 4.6.
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examine the measures and related claims the complainant has raised in its panel request. 37 It has
been observed in past disputes that, as a general rule, "the measures included in a panel's terms
of reference must be measures that are in existence at the time of the establishment of the panel".38
However, contrary to India's argument, Article 6.2 does not set out an express temporal condition
or limitation on the measures that can be identified in a panel request. In certain circumstances,
measures enacted subsequent to the establishment of the panel may fall within its terms of
reference.39 Thus, measures that are modified during the panel proceedings or introduced after a
panel's establishment do not a priori fall outside the panel's terms of reference.
1.19 A panel may exa mine a measure adopted after the date of the panel's establishment if it
amends one of the measures explicitly identified in the complainant's panel request, provided that
the panel request is broad enough to encompass such an amendment and the amendment does not
change the "essence" of the measure identified in the panel request. 40 Another factor to be taken
into account in assessing whether a measure that postdates the panel's establishment falls within
the panel's terms of reference, is whether excluding such a measure from the panel's terms of
reference would be contrary to the objectives of prompt dispute settlement and securing a positive
solution to disputes, as laid down in Articles 3.3 and 3.7 of the DSU.41
1.20 In light of the above, we are not convinced by India's argument that only measures that were
in existence at the time of the panel's establishment fall within the panel's terms of reference. We
find the criteria discussed in previous disputes useful for determining whether the Marketing and
Transportation Scheme falls within the Panel's terms of reference and will take them into account in
our analysis.
1.4 Whether the Marketing and Transportation Scheme is within the Panel's terms of
reference
1.21 The parties disagree whether: (i) the texts of the complainants' panel requests are broad
enough to encompass the Marketing and Transportation Scheme; (ii) the Marketing and
Transportation Scheme is of the same essence as the alleged export subsidies ident ified in the
complainants' panel requests; and (iii) the inclusion of the Marketing and Transportation Scheme in
the Panel's terms of reference is necessary for the prompt settlement of, and securing a positive
solution to, the present disputes. We examine each of these issues in turn to determine whether the
Marketing and Transportation Scheme is within our terms of reference.
1.4.1 Whether the complainants' panel requests are "sufficiently broad" to encompass the
Marketing and Transportation Scheme
1.22 We first assess the content of the complainants' panel requests to determine whether the
descriptions of the measures identified therein are sufficiently broad to encompass the Marketing
and Transportation Scheme.

37 See e.g. Appellate Body Report, EC – Selected Customs Matters, para. 131 ("the panel request identifies
the measures and the claims that a panel will have the authority t o examine and on which it will have the
authority to make findings"). See also Panel Report, EC – Selected Customs Matters, para. 7.43.
38 Appellate Body Report, EC – Chicken Cuts, para. 156. See also Panel Reports, US – Renewable
39 Appellate Body Report, EC – Chicken Cuts, para. 156. See also Appellate Body Report, US – Zeroing
(Japan) (Article 21.5 – Japan), para. 121 and Panel Reports, US – Renewable Energy, para. 7.8 and US – Tariff
Measures (China), para. 7.35.
40 Panel Reports, US – Tariff Measures (China), para. 7.35; Thailand – Cigarettes (Philippines)
(Article 21.5 – Philippines), para. 7.808; Appellate Body Reports, Chile – Price Band System , paras. 136-144;
and EC – Selected Customs Matters, para. 184.
41 Article 3.3 of the DSU reads: "[t]he prompt settlement of situations in which a Member considers that
any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures
taken by another Member is essential to the effective functioning of the WTO and the maintenance of a proper
balance between the rights and obligations of Members." Article 3.7 of the DSU reads, inter alia, "[t]he aim of
the dispute settlement mechanism is to secure a positive solution to a dispute." (See Panel Reports,
Appellate Body Report, Chile – Price Band System, paras. 140-141).
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1.23 India argues that the Marketing and Transportation Scheme is not an "amendment" or
"successor" to the measures identified in the complainants' panel requests merely because it was
enacted subsequent to those measures.42
1.24 For its part, Brazil submits that the Marketing and Transporta tion Scheme is covered by
paragraphs 14 and 16 of Brazil's panel request.43
1.25 Paragraph 13 of Brazil's panel request states that "[t]he export subsidy measures and
programs pertaining to sugar and sugarcane include, but are not limited to" the list that follows. The
following paragraph reads:
14. Federal-level export subsidies pertaining to sugar or sugarcane which make the
provision of financial support contingent upon export performance under, including but
not limited to, the following legal instruments … [.]44
1.26 Paragraphs 14.a –14.d then list the "legal instruments" through which individual subsidy
programmes identified in the request are implemented. Paragraph 14.e reads:
e. All other Federal -level instruments, including all successor instruments, and any
amendments thereto, providing Federal -level subsidies contingent on export
performance during the 2014/15, 2015/16, 2016/17, 2017/18, 2018/19 seasons and
subsequent seasons.45
1.27 Paragraph 16 of Brazil's panel request further states:
16. In addition to the measures identified in paragraphs 14 to 15, the measures covered
by this request for the establishment of a Panel include any amendments to any of the
measures listed in paragraphs 14 to 15, above, or related, successor, replacement or
implementing measures thereto.46
1.28 First, we note that the phrase "measures … include, but are not limited to" in paragraph 13 of
Brazil's panel request leaves the list of the measures at issue open. Paragraph 14 further identifies
the measures at i ssue broadly as "[f]ederal -level export subsidies pertaining to sugar or
sugarcane".47 We note that the Marketing and Transportation Scheme, like other alleged export
subsidies listed in Brazil's panel request, was adopted by the DFPD, a federal agency, and is therefore
a measure adopted at the federal level of Government that could be covered by paragraph 14 of the
panel request. Furthermore, paragraph 16 of Brazil's panel request refers to "any amendments to
any of the measures listed in paragraphs 14 to 15 … or related, successor, replacement or
implementing measures thereto". Thus, Brazil's panel request anticipates the possibility of a change
to the measures listed therein. In our view, the Marketing and Transportation Scheme is covered by
the terms "any amendments to … or related, successor, replacement or implementing measures" in
paragraph 16.
1.29 As an additional point, we note that the open-ended list of legal instruments implementing
the alleged federal -level export subsidies in paragraph 14.e wo uld include the instruments
implementing the Marketing and Transportation Scheme. The Marketing and Transportation Scheme
is applicable to the 2019-20 sugar season, which follows the 2018 -19 sugar season, and therefore
is covered by the terms "during … subsequent seasons" in paragraph 14.e of Brazil's panel request.
This reinforces our view that the Marketing and Transportation Scheme falls within the scope of
Brazil's panel request.

42 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 49.
43 Brazil's comments regarding India's request for a preliminary ruling, 1 April, paras. 61 -63; comments
regarding India's request for a preliminary ruling, 4 May, paras. 30-32.
44 Brazil's panel request, para. 14. (underlining original)
45 Brazil's panel request, para. 14.e.
47 Brazil's panel request, para. 14. (underlining omitted)
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1.30 Australia submits that paragraphs 18 -20 of its panel request, as well as paragraph 9 of
Annex A of the panel request, are sufficiently broad to encompass the legal instruments that
implement the Marketing and Transportation Scheme.48
1.31 Paragraph 18 of Australia's panel request states:
18. Pursuant to Article 6.2 of the DSU, Australia identifies below the specific measures
through which India provides export subsidies for sugar and sugarcane, which are the
subject of this request. The measures at issue include the following, as well as any
amending, successor, supplemental, replacement, renewal, extension or implementing
measures thereto[.]49
1.32 Paragraph 19 defines the measures at issue as:
19. Federal-level measures pertaining to sugar or sugarcane which provide subsidies
contingent upon export performance, through, operating individually, collectively, or in
combination with each other[.]50
1.33 Paragraph 20 of the panel request indicates that "[t]hese measures are reflected in, but not
limited to, the instruments and documents identified in paragraph 9 of Annex A to this request." 51
Paragraph 9 of Annex A of the panel request contains an indicative list of legal instruments through
which the federal-level measures referred to in paragraph 19 operate. Paragraph 9(e) of Annex A
states:
(e) All other documents, communications, orders, directives, legal instruments,
including all successor instruments and any amendments thereto, providing for export
subsidies for sugarcane or sugar.
1.34 We note that paragraph 18 of Australia's panel request indic ates that the measures at issue
include not only those identified in paragraph 19, but also "any amending, successor, supplemental,
replacement, renewal, extension or implementing measures thereto". Thus, Australia's panel request
anticipates the possibility of a change to the measures listed therein. Furthermore, paragraph 19 of
the panel request identifies the measures at issue broadly as "[f]ederal -level measures pertaining
to sugar or sugarcane which provide subsidies contingent upon export performance". We recall that
the Marketing and Transportation Scheme, like other alleged export subsidy schemes listed in
Australia's panel request, was adopted by the DFPD, a federal agency, and is therefore a measure
adopted at the federal level of Government that c ould be covered by paragraph 19. We therefore
consider that the phrase "any amending, successor, supplemental, replacement, renewal, extension
or implementing measures thereto" in paragraph 18 of Australia's panel request is broad enough to
include the Marketing and Transportation Scheme.
1.35 As an additional point, we note that the list of legal instruments that implement the measures
at issue, in paragraph 9(e) of Annex A of Australia's panel request, is open-ended. In our view, the
phrase "[a]ll other documents, communications, orders, directives, legal instruments, including all
successor instruments and any amendments thereto, providing for export subsidies for sugarcane
or sugar[]" found in this paragraph is also broad enough to cover the instruments implementing the
Marketing and Transportation Scheme. This reinforces our view that the Marketing and
Transportation Scheme falls within the scope of Australia's panel request.

48 Australia's comments regarding India's request for a preliminary ruling , 1 April 2020, paras. 66-72;
comments regarding India's request for a preliminary ruling, 4 May 2020, paras. 50-58.
50 Australia's panel request, para. 19. (underlining original) This is followed by the list of specific subsidy
programmes at issue, namely (i) subsidies for the production of sugarcane and sugar that are contingent upon
export performance; (ii) subsidies for the maintenanc e of stocks for sugar that are contingent upon export
performance; (iii) measures that prescribe maximum domestic sales quotas and stockholding limits connected
to export performance; (iv) MIEQs that require mills to export certain quantities of sugar; and (v) DFIA for sugar
to be imported in the 2019-20 and 2020-21 sugar seasons. (Ibid.)
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1.36 Guatemala submits that the terms of its panel request, in particular Secti on III.A and
paragraph 9, are broad enough to encompass the Marketing and Transportation Scheme.52
1.37 Section III.A of Guatemala's panel request refers, inter alia, to the following measures that
Guatemala considers to be contingent upon export performance:
The measures at issue include the following, as well as any amendments, related,
successor, replacement or implementing measures thereto:
9. Federal-level measures pertaining to sugar or sugarcane that provide
subsidies contingent upon export performa nce, including, but not limited
to, the instruments (operating individually, collectively, or in combination
with each other) identified in paragraph 9 of the Annex to this request.53
1.38 Paragraph 9 of the Annex to Guatemala's panel request, provides:
Federal-level measures pertaining to sugar or sugarcane that provide subsidies
contingent upon export performance , including, but not limited to, the following
instruments (operating individually, collectively, or in combination with each other):
…
(h) All other instruments, including all successor instruments and any
amendments thereto, providing federal -level subsidies contingent on
export performance to sugar mills.54
1.39 The chapeau of Section III.A of Guatemala's panel request specifies that the measures at issue
"include" the measures identified in paragraphs 9-11 of Guatemala's panel request, "as well as any
amendment, related, successor, replacement or implementing measures thereto". Accordingly, the
list of the measures at issue anticipat es the possibility of a change to the measures at issue.
Furthermore, paragraph 9, which follows the chapeau of Section III.A, refers to "[f]ederal -level
measures pertaining to sugar or sugarcane that provide subsidies contingent upon export
performance".55 We recall that the Marketing and Transportation Scheme, like other alleged export
subsidy schemes, was adopted by the DFPD, a federal agency, and is therefore a measure adopted
at the federal level of Government. We therefore consider that the text of Se ction III.A of
Guatemala's panel request is broad enough to cover the Marketing and Transportation Scheme.
1.40 As an additional point, we note that paragraph 9 of the Annex to Guatemala's panel request
provides that the measures at issue are "not limited to" the instruments identified therein.56 In our
view, the phrase "[a]ll other instruments, including all successor instruments and any amendments
thereto, providing federal-level subsidies contingent on export performance to sugar mills" found in
paragraph 9(h) of the Annex is broad enough to cover the legal instruments implementing the
Marketing and Transportation Scheme. This reinforces our view that the Marketing and
Transportation Scheme falls within the scope of Guatemala's panel request.
1.41 In sum, our examination of the texts of the complainants' panel requests reveals that they
are broad enough to encompass the Marketing and Transportation Scheme.
1.4.2 Whether the measures are of the same essence
1.42 We now turn to examine whether the Marketing and Transportation Scheme is of the same
essence as the alleged export subsidies identified in the complainants' panel requests.
1.43 India submits three main arguments why it considers that the Marketing and Transportation
Scheme is not of the same essence as the measures identified in the complainants' panel requests.57

52 Guatemala's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 45-55.
53 Guatemala's panel request, para. 9. (underlining original)
54 Guatemala's panel request, para. 9 of the Annex. (underlining original)
55 Guatemala's panel request, para. 9. (underlining omitted)
56 Guatemala's panel request, para. 9. (underlining added)
57 India's comments regarding its request for a preliminary ruling, 27 April 2020, paras. 51-56.
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First, India argues that the nature of the Marketing and Transportation Scheme is different from the
Production Assistance Scheme and the Buffer Stock Scheme because the Marketin g and
Transportation Scheme "has been introduced specifically with the view of providing WTO-consistent
payments to offset transport and marketing costs incurred by sugar mills carrying out the export of
sugar".58 Second, India submits that the eligibility requirements under the different schemes vary
significantly. India points out that, pursuant to the terms of the Production Assistance Scheme, mills
that have ethanol production capacity are required to supply a certain amount of ethanol to oil
marketing companies. India further notes that the eligibility for the buffer stock subsidies is
dependent on the actual maintenance of buffer stock. 59 India contrasts this with the eligibility
requirements for the Marketing and Transportation Scheme which, according to India, "cover sugar
mills that have actually incurred … marketing and transport expenses by exporting sugar in
accordance with their MAEQs".60 Third, India contends that the amounts of assistance provided, and
the methodology to determine such amounts, vary greatly depending on the scheme. In this regard,
India submits that the Marketing and Transportation Scheme provides assistance towards marketing
and transportation costs at a specified rate in contrast to other schemes under which the amount of
assistance depends of the volume of the cane crushed.61
1.44 The complainants maintain that the Marketing and Transportation Scheme is of the same
essence as India's export contingent measures listed in the complainants' panel requests. In
particular, the complainants submit that the Marketing and Transportation Scheme exhibits the same
policy purpose, and design and structure as the measures listed in the complainants' panel
requests.62 For Australia, the Marketing and Transportation Scheme "is merely the late st
(albeit renamed) iteration of India's sugar export policy of tying direct payment schemes to an
export quota program, repeated annually on a seasonal basis". 63 Similarly, Brazil and Guatemala
argue that India simply changed the title of the schemes.64
1.45 The following factors have been considered in assessing whether a measure enacted after the
panel request was of the same essence as the measures identified in the request: the type of
trade-restrictive effect65; the range of products subject to duties 66; the operation of the measure
and the amendment67; their legal implications68; their regulatory purpose69; the proximity of design,
structure, and impact 70; the existence of an explicit reference to the original measure in the
amendment71; the title of the amendment 72; the authority that issued the measure and the
amendment73; the legal basis cited 74; and whether the original measure remained in force "in
substance".75 We consider some of these factors to be relevant in assessing the matter before us.
1.46 First, we note that the Production Assistance Scheme, the Buffer Stock Scheme, and the
Marketing and Transportation Scheme were implemented through the same types of legal
instruments – notifications and orders – and were issued by the same fed eral agency, the DFPD.76

58 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 53.
59 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 54.
60 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 54.
61 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 55.
62 Brazil's comments regarding India's request for a preliminary ruling , 4 May 2020, paras. 36 -38;
Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 73-75.
63 Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 80.
64 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 69; Guatemala's
comments regarding India's request for a preliminary ruling, 1 April 2020, para. 57.
65 See e.g. Panel Report, Colombia – Textiles, para. 7.37.
66 See e.g. Panel Reports, Colombia – Textiles, para. 7.37; India – Additional Import Duties, para. 7.63;
and US – Tariff Measures (China), para. 7.49; and Appellate Body Report, EC – Chicken Cuts, para. 158.
67 See e.g. Panel Reports, Colombia – Textiles, para. 7.37; and EC – IT Products, para. 7.186.
68 See e.g. Appellate Body Report, EC – Chicken Cuts, para. 158; and Panel Reports, EC – IT Products,
69 See e.g. Panel Report, Russia – Pigs (EU), para. 7.156.
70 See e.g. Panel Report, Russia – Pigs (EU), para. 7.156.
71 See e.g. Appellate Body Report, EC – Chicken Cuts, para. 158.
72 See e.g. Panel Reports, Colombia – Textiles, para. 7.37; and US – Tariff Measures (China), para. 7.51.
73 See e.g. Panel Reports, Colombia – Textiles, para. 7.37; and US – Tariff Measures (China), para. 7.51.
74 See e.g. Panel Report, Colombia – Textiles, para. 7.37.
75 Panel Report, Argentina – Footwear (EC), para. 8.45
76 Notification of 2 December 2015, (Exhibit JE-76); Notification of 9 May 2018 (Exhibit JE-75); Notification
of 5 October 2018 (Exhibit JE -74); Notification of 15 June 2018 , (Exhibit JE-78); Notification of 31 July 2019,
(Exhibit JE-77); and Notification of 12 September 2019, (Exhibit JE -114); MIEQ Order of 18 September 2015,
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We also note that the legal bases of such notices were the same, i.e. Section 3 of the Essential
Commodities Act 195577 and Clause 5 of the Sugar (Control) Order 1966.78
1.47 Second, the purpose of the assistance provided under the Marketing and Transportation
Scheme79 is the same as that of the Production Assistance Scheme80 and the Buffer Stock Scheme81,
namely, to pay cane price dues of farmers for the relevant sugar season. India argues that the
purpose of the Marketing and Transportation Scheme is to provide WTO -consistent payments to
offset the transport and marketing costs incurred by sugar mills that export sugar.82 As explained in
section 7.2.4.4 of this Report, we are not persuaded by India's arguments regarding the purpose of
the Marketing and Transportation Scheme. Although some elements of the Marketing and
Transportation Scheme do refer to transport and marketing costs 83, paragraph 1 of the Marketing
and Transportation Scheme, titled "Purpose of Assistance", states that the assistance "is to be used
for payment of cane price dues of farmers for the sugar season 2019 -20 and cane price arrears of
previous seasons, if any."84 Furthermore, the preamble to, and paragraph 5(i) of, the Marketing and
Transportation Scheme also stipulate that the assistance must be used for the payment of cane price
dues of farmers.85
1.48 Third, the Marketing and Transportation Scheme, the Production Assistance Scheme, and the
Buffer Stock Scheme prescribe the same modalities for the payment of the assistance. Specifically,
each of the schemes requires that sugar mills open separate non-lien accounts in a bank and provide
to the bank a list of farmers and their bank account details, as well as the amount of cane price
dues.86 All three schemes also require sugar mills receiving assistance to submit to the DFPD a
utilization certificate indicating that the assistance was used to pay cane price arrears to farmers in
the relevant sugar season.87
1.49 Fourth, the three subsidy schemes at issue have similar eligibility criteria in that they require
mills to export a certain amount of sugar in order to be eligible for assistance. In particular, to be
eligible for assistance under these schemes, a sugar mill must, inter alia, comply with orders and
directives of the DFPD, including the MIEQ and the MAEQ orders that set the amount of sugar to be
exported and divide it among individual mills.88 More specifically, the Notifications implementing the
Production Assistance Scheme for the sugar seasons 2017-18 and 2018-19 require, as an eligibility

(Exhibit JE -109); MIEQ Order of 28 March 2018, (Exhibit JE -107); MIEQ Order of 28 September 2018,
(Exhibit JE-108).
77 Section (3E) of the Essential Commodities Act states:
Central Government may, from time to time, by general or special order, direct any producer or
importer or exporter or recognised dealer or any class of producers or recognised dealers, to take
action regarding production, maintenance of stocks, storage, sale, grading, packing, marking,
weighment, disposal, delivery and distribution of any kind of sugar in the manner specified in the
direction.
(Exhibit JE-43, Section (3E))
78 Clause 5 of the Sugar (Control) Order enables the Central Government to issue general or special orders
to sugar producers, importers or dealers to regulate, among others, production, maintenance of stocks, storage,
sales, delivery an d distribution of any kind of sugar. ( Sugar (Control) Order, 1966, (Exhibit JE-44), Clause 5,
p. 42)
79 Notification of 12 September 2019, (Exhibit JE-114), preamble and para. 1.
80 See Notification of 2 December 2015, (Exhibit JE-76), preamble and para. 1; Notification of 9 May 2018
(Exhibit JE-75), preamble and para. 1; and Notification of 5 October 2018, (Exhibit JE-74), preamble and para. 1.
81 See Notification of 15 June 2018 (Exhibit JE-78), preamble and para. 1; and Notification of 31 July 2019
82 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 53.
83 Notification of 12 September 2019, (Exhibit JE-114), para. 3.
84 Notification of 12 September 2019, (Exhibit JE-114), para. 1.
85 Notification of 12 September 2019, (Exhibit JE-114), preamble and para. 5.
86 Notification of 2 December 2015, (Exhibit JE-76), para. 2.v; Notification of 9 May 2018, (Exhibit JE-75),
para. 3(v); Notification of 5 October 2018, (Exhibit JE -74), para. 3(iv); Notification of 15 June 2018,
(Exhibit JE-78), para. 9(a); Notification of 31 July 2019, (Exhibit JE -77), para. 9(a); Notification of
87 Notification of 2 December 2015, (Exhibit JE-76), para. 3; Notification of 9 May 2018, (Exhibit JE-75),
para. 4; Notification of 5 October 2018, (Exhibit JE -74), para. 4; Notification of 15 June 2018, (Exhibit JE -78),
(Exhibit JE-114), para. 6.
88 Notification of 12 September 2019, (Exhibit JE-114), para. 2.a.
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criterion, that the mill fully comply with all orders of the DFPD for the relevant sugar season. 89 By
the same token, the amendments of 31 December 2018 to the Buffer Stock Scheme 2018 stipulate
that, to receive the quarterly reimbursement of the buffer stock subsidy, mills are "required to fully
comply with all the orders/directives issued by [the DFPD] for compliance during the 2018-19 sugar
season".90 Such orders include the MIEQ orders for the relevant sugar seasons, which determine a
total quantity of sugar that must be exported, and set mill -wise allocations.91 The Marketing and
Transportation Scheme likewise provides that, to be eligible for assistance, sugar mills "should have
exported sugar up to the extent of their [MAEQ] determined by the Central Government for such
mills for the sugar season 2019-20".92 In order to be eligible for assistance, a sugar mill is required
to export at least 50% of its MAEQ.93
1.50 India argues that, under the Production Assistance Scheme, mills that have ethanol production
capacity are required to supply a certain amount of ethanol to oil marketing companies. India further
notes that the eligibility for the Buffer St ock Scheme is dependent on the actual maintenance of
buffer stock.94 India contrasts this with the eligibility criteria for the Marketing and Transportation
Scheme, which, "cover sugar mills that have actually incurred … marketing and transport expenses
by exporting sugar in accordance with their MAEQs". 95 It is true that each of the subsidy schemes
at issue contains several eligibility requirements. For example, as India points out, under the
Production Assistance Scheme, mills that have ethanol production capacity must supply a certain
amount of it to marketing companies. 96 However, we consider that a common core feature of all
three schemes is that they require compliance with the MIEQ or MAEQ orders that set out mill -
specific export targets. That they also contain other requirements does not change the fact that their
central requirement is the exportation of a certain amount of sugar.
1.51 Finally, India argues that the amounts of assistance provided, and the methodology to
determine such amounts, vary greatly depending on the scheme. In this regard, India submits that
the Marketing and Transportation Scheme provides assistance towards marketing and transportation
costs at a specified rate, in contrast to other schemes that provide different amounts calcu lated on
the basis of the amount of the cane crushed.97 The complainants do not disagree with India on this
point.98 Indeed, India is correct that the amount of assistance and the methodology to determine
that amount vary across the different subsidy schem es. This difference, however, does not detract
from the fact that the schemes were implemented by the same federal agency through the same
types of legal instruments, all three schemes require exportation of a certain amount of sugar in
order for mills to be eligible for assistance, the purpose of the schemes is the same, and all three
schemes require that payments be made directly to farmers' accounts on behalf of sugar mills. We
agree with Australia that the differences that India points out "are immaterial to the issues that fall
for consideration in this dispute. What is material is that the financial assistance that is paid under
each scheme, whatever its amount and however that amount is determined, is tied to export
performance."99
1.52 Based on the foregoing, we find the Marketing and Transportation Scheme to be of the same
essence as the Production Assistance and Buffer Stock Schemes identified in the complainants' panel
requests.

89 Notification of 9 May 2018, (Exhibit JE-75), para. 2(c); Notification of 5 October 2018 (Exhibit JE -74),
para. 2(c). In the same vein, the Notification implementing t he Production Assistance Scheme for the 2015-16
sugar season provides that, in order to be eligible for assistance, a mill must export 80 per cent of its MIEQ
target. (Notification of 2 December 2015, (Exhibit JE-76), para. 2.iii)
90 Notification of 31 December 2018, (Exhibit JE-112), para. 2.
91 MIEQ Order of 28 March 2018, (Exhibit JE-107); Notification of 9 May 2018, (Exhibit JE-111), para. 2;
Notification of 28 September 2018, (Exhibit JE-108).
92 Notification of 12 September 2019, (Exhibit JE -114), para. 2(a); MAEQ Order of 16 September 2019 ,
(Exhibit JE-115).
93 Notification of 12 September 2019, (Exhibit JE-114), para. 2(a).
94 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 54.
95 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 54.
97 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 55.
98 Brazil's comments regarding India's request for a preliminary ruling, 4 May 2020, para. 44; Australia's
comments regarding India's request for a preliminary ruling, 4 May 2020, para. 78.
99 Australia's comments regarding India's request for a preliminary ruling, 4 May, para. 78.
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1.4.3 Whether including the Marketing and Transportation Scheme in the Panel's terms of
reference would contribute to the prompt settlement of, and securing a positive solution
to, the present disputes
1.53 India considers that including the Marketing and Transportation Scheme in the Panel's terms
of reference is neither necessary nor warranted to secure a positive solution to this dispute. India
submits that the Marketing and Transportation Scheme "by no means is a recurring measure but
rather a separate and distinct measure i n its own right" .100 In India's view, "the Marketing and
Transportation Scheme may be adequately examined and taken into consideration, if required,
during the stage of compliance".101
1.54 The complainants submit that including the Marketing and Transportat ion Scheme in the
Panel's terms of reference is necessary to contribute to a prompt settlement of, and securing a
positive solution to, the disputes, in accordance with the principles articulated in Articles 3.3 and 3.7
of the DSU. 102 The complainants argue that India has a demonstrated pattern of adopting, on a
seasonal basis, export -related support schemes that have similar policy objectives and design,
structure, and operation.103 Australia and Guatemala further note that requiring the complainants to
challenge every new iteration of these measures could turn them into a "moving target" that shifts
from year to year.104
1.55 We note that India's assistance schemes are adopted on a seasonal basis. In particular, the
complainants submit evidence with respect to the Production Assistance Scheme for the 2015-16105,
2017-18,106 and 2018-19 sugar seasons 107, and the Buffer Stock Scheme for the 2018 -19108 and
2019-20 sugar seasons. 109 The Marketing and Transportation Scheme was also adopted on a
seasonal basis, for the 2019-20 sugar season.110
1.56 We agree with the complainants that requiring them to challenge each seasonal iteration of
India's alleged export subsidy measures would turn such measures into moving targets. Such an
outcome would defeat the objectives of prompt dispute settlement, set out in Article 3.3 of the DSU,
and securing a positive solution to disputes, set out in Article 3.7 of the DSU.111 Thus, including the
Marketing and Transportation Scheme in the Panel's terms of reference would contribute to a prompt
settlement of, and securing a positive solution to, the present disputes.
1.57 Regarding India's argument that the Marketing and Transportation Scheme may be assessed
in a compliance proceeding brought pursuant to Article 21.5 of the DSU, we note that this argument
prejudges the evolution of these disputes by assuming that there will be compliance proceedings.
Furthermore, India has not explained how exactly the Marketing and Transportation Scheme would
fall within the scope of such hypothetical complia nce proceedings. In any event, we cannot, based
on such a speculative argument, decline to exercise jurisdiction over a measure that we find to be
within our terms of reference.

100 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 57.
101 India's comments regarding its request for a preliminary ruling, 27 April 2020, para. 57.
102 Brazil's comments regarding Ind ia's request for a preliminary ruling , 1 April 2020, paras. 71 -74;
Australia's comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 81-83; Guatemala's
comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 59-61.
103 Brazil's comments regarding India's request for a preliminary ruling, 1 April 2020, para. 73; Australia's
comments regarding India's request for a preliminary ruling, 1 April 2020, paras. 82-83.
104 Australia's comments regarding India's request for a preliminary ruling , 1 April 2020, para. 82;
comments regarding India's request for a preliminary ruling , 4 May 2020, para. 83; Guatemala's comments
regarding India's request for a preliminary ruling , 1 April 2020, para. 59; comments r egarding India's request
for a preliminary ruling, 4 May 2020, paras. 54-55.
105 Notification of 2 December 2015, (Exhibit JE-76).
106 Notification of 9 May 2018, (Exhibit JE-75).
107 Notification of 5 October 2018, (Exhibit JE-74).
108 Notification of 15 June 2018, (Exhibit JE-78).
109 Notification of 31 July 2019, (Exhibit JE-77).
110 Notification of 12 September 2019, (Exhibit JE-114), preamble.
111 As the panel in Argentina – Footwear (EC) observed, in such circumstances, "Members could always
keep one step ahead of any WTO dispute settlement proceeding because in such a situation, the complaining
Member would indeed, challenge a 'moving target', and panel and Appellate Body's findings could already be
overtaken by events when they are rendered and adopted by the DSB." (Panel Report,
Argentina - Footwear (EC), para. 8.41. See also Appellate Body Report, Chile – Price Band System, para. 144).
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1.5 Conclusion
1.58 We have concluded that the complainants' panel requests are broad enough to encompass the
Marketing and Transportation Scheme. We have also concluded that the Marketing and
Transportation Scheme is of the same essence as the subsidy schemes listed in the c omplainants'
panel requests because all those Schemes : (i) were implemented by the same federal agency
through the same type of legal instrument; (ii) have the same purpose; (iii) prescribe the same
modalities for the payment of the assistance; and (iv) ha ve similar eligibility criteria in that they
require mills to export a certain amount of sugar in order to be eligible for assistance. As the
Marketing and Transportation Scheme is of the same essence as the other subsidy schemes, and
the complainants' pan el requests are broad enough to encompass it, and in light of the seasonal
character of India's alleged export subsidies, we consider that including the Marketing and
Transportation Scheme in our terms of reference would contribute to the prompt settlement of, and
securing a positive solution to, the present disputes, in accordance with Articles 3.3 and 3.7 of the
DSU.
1.59 We therefore find that the Marketing and Transportation Scheme is within our terms of
reference.