INDIA – CERTAIN MEASURES RELATING TO SOLAR CELLS AND SOLAR MODULES AB-2016-3
Document: Report of the Appellate Body Addendum
Date: 16 September 2016
Document codes: WT/DS456/AB/R/Add.1; WT/DS456/AB/R.
Complainant: U.S.
Respondent: India
Third parties: Brazil, Canada, China, EU, Japan, South Korea, Malaysia, Norway, Russia, Turkey, Ecuador, Saudi Arabia, Taiwan
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. III:4  GATT 1994Art. 2.1  Trade-Related Investment Measures (TRIMs)

INDIA – CERTAIN MEASURES RELATING TO SOLAR CELLS
 AND SOLAR MODULES
 AB-2016-3
Report of the Appellate Body
Addendum
This Addendum contains Annexes A to D to the Report of the Appellate Body circulated as
document

The Notice of Appeal and the executive summaries of written submissions contained in this
Addendum are attached as they were received from the participants and third participants. The
content has not been revised or edited by the Appellate Body, except that paragraph and footnote
numbers that did not start at one in the original may have been re -numbered to do so, and the
text may have been formatted in order to adhere to WTO style. The executive summaries do not
serve as substitutes for the submissions of the participants and thir d participants in the
Appellate Body's examination of the appeal.

LIST OF ANNEXES
ANNEX A
NOTICE OF APPEAL
Contents Page
Annex A-1 India's Notice of Appeal A-2
ANNEX B
ARGUMENTS OF THE PARTICIPANTS
Contents Page
Annex B-1 Executive summary of India's appellant's submission B-2
Annex B-2 Executive summary of the United States' appellee's submission B-7
ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of Brazil's third participant's submission C-2
Annex C-2 Executive summary of the European Union's third participant's submission C-3
Annex C-3 Executive summary of Japan's third participant's submission C-5
ANNEX D
PROCEDURAL RULING
Contents Page
Annex D-1 Procedural Ruling of 4 May 2016 regarding modification of the dates for the
filing of written submissions
D-2

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ANNEX A
NOTICE OF APPEAL
Contents Page
Annex A-1 India's Notice of Appeal A-2

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ANNEX A-1
INDIA'S NOTICE OF APPEAL*
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes (the "DSU") and Rule 20 of the Working Procedures for
Appellate Review (WT/AB/WP/6) ("Working Procedures"), India hereby notifies its decision to
appeal certain issues of law covered by in the panel repo rt in India – Certain Measures relating to
Solar Cells and Solar Modules (WT/DS456/R) ("Panel Report "), and certain legal interpretations
developed by the Panel in this dispute.

Pursuant to Rules 20(1) and 21(1) of the Working Procedures, India files this Notification
together with its Appellant's Submission with the Appellate Body Secretariat.

For the reasons to be elaborated in its submissions to the Appellate Body, India appeals the
following errors of law and legal interpretation contained in the Pane l Report and requests the
Appellate Body to reverse the related findings, conclusions and recommendations of the Panel, and
where indicated, to complete the analysis.1

I THE PANEL ERRED IN I TS FINDING THAT ARTI CLE III:8(A) OF THE GATT 1994 IS
NOT APPLICABLE TO THE DCR MEASURES
1. India appeals the Panel 's conclusion that the DCR measures are not covered by the
derogation under Article III:8(a) of the GATT 1994 for the following reasons:
i. The Panel erred in not considering India's arguments that solar cells and modules are
indistinguishable from solar power generation 2, and that in its factual and legal
assessment, it is not necessary to consider whether solar cells and modules qualify
as "inputs" for solar power generation. The basis for the Panel 's reasoning was that
the Appellate Body in Canada – Renewable Energy / Feed -In Tariff Program, did not
consider this issue 3, while ignoring the fact that this issue was not presented for
consideration before the Appellate Body in that dispute.
ii. The Panel erred in its conclusion that discrimination relating to solar cells and
modules under the DCR measures is not covered by the derogation under
Article III:8(a) of the GATT 1994.4
2. India requests the Appellate Body to find that the Panel acted inconsistently with Articl e 11
of the DSU in failing to consider and to make an objective assessment of India 's arguments
that: (i) solar cells and modules are indistinguishable from solar power generation,
and (ii) solar cells and modules can be characterized as inputs for generat ion of solar
power.5
3. India further requests the Appellate Body to reverse the Panel 's findings that the derogation
under Article III:8(a) of the GATT 1994 is not available for solar cells and modules since
what the Government purchases is electricity gener ated from such cells and modules 6 and

* This Notice, dated 20 April 2016, was circulated to Members as document WT/DS456/9.

1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, this Notice of Appeal provides an indicative
list of the paragraphs of the Panel Report containing the alleged errors of law and legal interpretation by the
Panel in its report, without prejudice to India's ability to rely on other paragraphs of the Panel Report in its
appeal.
2 Panel Report, paras. 6.24, 7.114 and 7.116.
3 Panel Report, paras. 7.116-7.135, particularly paras. 7.116, 7.118, 7.123, 7.125, 7.126, 7.128.
4 Panel Report, paras. 7.100-7.187, particularly paras. 7.135 and 7.187.
5 Panel Report, para. 6.24, paras. 7.116-7.135, particularly paras. 7.116, 7.118, 7.123, 7.125, 7.126,
7.128.
6 Panel Report, paras.7.135 and 7.187.

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instead complete the analysis to find that the DCR measures are covered by the derogation
under Article III:8(a) of the GATT 1994.
4. Should the Appellate Body hold that the DCR measures are covered by the derogation und er
Article III:8(a) of the GATT 1994, India requests the Appellate Body to complete the
analysis under Article III:8(a) of the GATT 1994 and find that:
i. The DCR measures are laws, regulations or requirements governing procurement;
ii. The procurement under the DCR measures is made by governmental agencies;
iii. The procurement under the DCR measures is of products purchased for
governmental purposes;
iv. The procurement and purchase of products under the DCR measures is not with a
view to commercial resale.
5. Based on th e above, India requests the Appellate Body to find that the DCR measures are
not inconsistent with Article 2.1 of the TRIMs Agreement and Article III:4 of the GATT 1994.
II THE PANEL ERRED IN I TS FINDING THAT THE EXCEPTION UNDER ARTI CLE XX(J)
OF THE GATT 1994 IS NOT APPLICABLE TO THE DCR MEASURES
1. Should the Appellate Body uphold the Panel's finding that the DCR measures are not covered
by the derogation of Article III:8(a) of the GATT 1994, India requests the Appellate Body to
find that the Panel erred in its conclusion that the DCR measures are not justified under the
general exception in Article XX(j) of the GATT 1994.7
2. India also requests the Appellate Body to find that the Panel ac ted inconsistently with
Article 11 of the DSU in its assessment of India 's arguments on "sufficient manufacturing
capacity"8; by disregarding India 's justification with regard to the DCR measures, and
substituting it with one which had no basis in India's submissions9; and in arriving at various
conclusions based on a piecemea l and selective analysis of two reports without providing
India due process rights to respond to its conclusions.10
3. India requests the Appellate Body to reverse the Panel 's conclusion that the DCR measures
are not justified under Article XX(j) of the GATT 1 994 and to complete the analy sis under
Article XX(j) to find that:
i. India's lack of manufacturing capacity of solar cells and modules amounts to a
situation of local and general short supply of such products in India, and that the
defence under Article XX(j) is available to it;
ii. The DCR measures are essential for addressing the local and general short su pply of
solar cells and modules;
iii. The DCR measures are justified under Article XX(j) of the GATT 1994 because they
meet with the requirements of the chapeau of Article XX.

 7 Panel Report, paras. 6.30-6.31, paras. 7.188-7.265, paras. 7.337-7.390, particularly paras. 7.189,
7.190, 7.207, 7.218, 7.236, 7.237, 7.265, 7.337-7.342, 7.346, 7.350, 7.354, 7.360-7.368, 7.380, 7.382,
7.389 and 7.390.
8 Panel Report, para. 7.226.
9 Panel Report, paras. 7.189, 7.190, 7.237, 7.337-7.342, 7.350, 7.351, 7.354, 7.360-7.363,
7.366-7.368 and 7.380.

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III SUBSIDIARILY, THE PA NEL ERRED IN ITS FIN DING THAT THE DCR ME ASURES ARE
NOT JUSTIFIABLE UNDER ARTICLE XX(D) OF THE GATT 1994
1. Should the Appellate Body find that the derogation under Article III:8(a) of the GATT 1994 is
not available for I ndia, and that the DCR measures are not justifiable under Article XX(j) of
the GATT 1994, then India requests the Appellate Body to find that the Panel erred in its
conclusion that the DCR measures are not justified under the general exception in
Article XX(d) of the GATT 1994.11
2. India requests the Appellate Body to reverse the Panel 's conclusion that the DCR measures
are not justified under Article XX(d) of the GATT 1994 and to comp lete the analysis under
Article XX(d) to find that:
i. The international and do mestic laws and regulations identified by India, constitute
laws and regulations for the purpose of Article XX(d);
ii. The DCR measures are necessary for securing compliance with the mandate under
India's laws and regulations to achieve ecologically sustainab le growth and
sustainable development; and
iii. The DCR measures are justified under Article XX(d) of the GATT 1994 because they
meet with the requirements of the chapeau of Article XX.

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ANNEX B
ARGUMENTS OF THE PARTICIPANTS
Contents Page
Annex B-1 Executive summary of India's appellant's submission B-2
Annex B-2 Executive summary of the United States' appellee's submission B-7

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ANNEX B-1
EXECUTIVE SUMMARY OF INDIA'S APPELLANT'S SUBMISSION
SUMMARY OF ISSUES UNDER ARTICLE III:8(A) OF THE GATT 1994
(i) The Panel erred in not considering India's arguments that solar cells and
modules are indistinguishable from solar power generation.
1. India's submission before the Panel was based on the inherent physical characteristics of
solar cells and modules that make it indistinguishable from the electricity generated from it.
This aspect was not pleaded and therefore not considered by the Appellate Body in
Canada ‒ Renewable Energy/Canada – Feed-in Tariff Program.
2. In dismissing India's arguments based on the reasoning that "… the Appellate Body did not
find such considerations germane to its evaluation of electricity and generation equipment
that included solar cells and modules", 1 the Panel ignored the substance of India 's
arguments on why solar cell s and modules stand on a different footing. The Panel 's
reasoning indicates that merely because such arguments were not made, and therefore not
considered, in a separate dispute – the Canada – Renewable Energy/Canada – Feed-in Tariff
Program, it too cannot consider the same.
(ii) The Panel erred in its assessment that it is not necessary to consider whether
solar cells and modules qualify as "inputs" for solar power generation.
3. India argued that solar cells and modules can also be seen as "inputs for solar power
generation", and reasoned that the Appellate Body report in Canada – Renewable
Energy/Feed in Tariff Program, left space for legal reasoning on the issue of inputs.2
4. The Panel dismissed India 's arguments that it is not necessary for it to assess r egarding
whether solar cells and modules can be considered as inputs for generation of solar power,
since the Appellate Body in Canada's dispute referred to "generation equipment" throughout
its analysis, and did not distinguish between "solar cells and mo dules" and other "generation
equipment".3 The Panel's reasoning ignores that this argument or reasoning was not
submitted by any of the parties to Canada – Renewable Energy/Feed-In Tariff Program.
(iii) The Panel erred in dismissing India's argument that t he consequence of sole
reliance on the test of competitive relationship, would be an unduly restrictive
interpretation of Article III:8(a).
5. India argued that an overly restrictive interpretation of Article III:8(a) will mean that
governments can act only in certain ways to avail of its benefit, such as: (a) they would
need to purchase the solar cells and modules by themselves, and generate the electric ity
from it, or (b) purchase the solar cells and modules, and provide it to solar power
developers for pow er generation. 4 The Panel dismissed this argument, not on any
consideration of the merits of India 's arguments under Article III:8(a), but because in its
view, the measure at issue is not distinguishable in any relevant respect from those
considered by the Appellate Body in Canada ‒ Renewable Energy/Feed-In Tariff Program.5

1 Panel Report, para. 7.128.
2 Appellate Body Report, Canada-Renewable Energy/Canada- Feed-in Tariff Programme, para 5.63.
3 Panel Report, para. 7.126.
4 India's first written submission, paras. 117-119.
5 Panel Report, para 7.134.

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(iv) The Panel acted inconsistently with its obligations under Article 11 of the DSU
to make an objective assessment of the matter before it in evaluating the
issues under Article III:8(a).
6. The Panel seems to ha ve simply taken shelter under the Appellate Body 's ruling in
Canada ‒ Renewable Energy/Feed -in Tariff Program , and wherever it could not find an
answer for a specific issue or argument within the reasoning in that dispute, it simply
dismissed it as a matte r that had not been considered as relevant by the Appellate Body,
and for that reason alone, it too would not consider these arguments.
7. India requests the Appellate Body to find that this abnegation of responsibility to make an
objective assessment of the facts and arguments before it, amounts to action inconsistent
with the responsibility of a panel under Article 11 of the DSU to make an objective
assessment of the facts of the case, and the applicability of and conformity with the relevant
provisions of the covered agreements.
(v) Findings and conclusions with regard to Article III:8(a) of the GATT 1994.
8. India requests the Appellate Body to reverse the Panel 's findings that the derogation under
Article III:8(a) of the GATT 1994 is not available for solar cells and modules,6 and complete
the analysis to find that the DCR measures are covered by the derogation under
Article III:8(a) of the GATT 1994.
9. Should the Appellate Body find that the derogation of Article III:8(a) is available for India 's
DCR measure s, India further requests the Appellate Body to comp lete the analysis under
Article III:8(a) of the GATT 1994 and find that:
i. The DCR measures are laws, regulations or requirements governing procurement;
ii. The procurement under the DCR measures is made by governmental agencies;
iii. The procurement under the DCR measures is of products purcha sed for
governmental purposes;
iv. The procurement and purchase of products under the DCR measures is not with a
view to commercial resale.
SUMMARY OF ISSUES UNDER ARTICLE XX(J) OF THE GATT 1994
10. Should the Appellate Body uphold the Panel's finding that the DCR measures are not covered
by the derogation under Article III:8(a) of the GATT 1994, India requests the Appellate Body
to find that the Panel erred in its conclusion that the DCR measures are not justified under
the general exception in Article XX(j) of the GATT 1994.
(i) The Panel erred in its legal interpretation of the terms "general or local short
supply" used in Article XX(j).
11. The Panel erred in its interpretation by not reading "short supply" in Article XX(j) in the
context of the specific terms used in that provision, i.e., "general or local", and instead,
adopted a piecemeal approach that interpreted the words "general or local" in isolation of
the words "short supply". The Panel concluded that "short supply" in "a general or local
market" would occur when the supply in such market does not meet the demand for the
concerned product.7 The Panel imputed new words into the provision, the effect of which
was a rewording of the first sentence of Article XX(j) as follows:
"essential to the acquisition or distribution of products when the quantity of available
supply of a product does not meet the demand in the relevant local or general
geographical area or market".

6 Panel Report, paras.7.135 and 7.187.
7 Panel Report, para.7.207.

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12. The use of the terms "general or local" to qualify the words "short supply" is a clear
reflection of intent to qualify the source of the supply as "general or local" as opposed to
"international supply" as reflected in the proviso to Article XX(j). The words "short s upply" in
Article XX(j) cannot therefore be read without imparting meaning to the full phrase: "general
or local short supply".
13. The term "supply" encompasses within it what is actually produced, and thereby available
for purchase. The amount of any commod ity actually produced at the general or local level
therefore needs to be considered for assessing "general or local short supply."
14. The Panel further erred in its assessment of the negot iating history of Article XX(j)8, since it
failed to consider a cruci al event in 1947 when the original wording of the provision:
"equitable distribution of products in short supply", was replaced with "general or local short
supply". The concept of equitable distribution as relevant for "international supply" was
shifted as a proviso to the main provision. The Panel failed to note that the use of the terms
"general or local short supply" contemplates short supply that is distinct from situations that
can be addressed by "international supply". If the intention of the negotiators was to refer to
international short supply in the first sentence of Article XX(j), this could have been
achieved by qualifying the phrase "short supply" with "international or with nothing at all.
15. The Panel's interpretation that Article XX(j) cannot be used in situations where the local or
general demand can be met from all sources including imports, 9 would render Article XX(j)
incapable of being used as a tool for import restraints. For Article XX(j) to be applicable
effectively in situations of bot h export and import restraints, the source of supply at the
general or local level, would need to be considered.
16. India requests the Appellate Body to reverse the interpretation of the terms "general or local
short supply" as evolved by the Panel, as havin g no basis in the text of the provision, and
running counter to settled principles of interpretation as laid out in Article 31 of the Vienna
Convention on the Law of Treaties. India further requests the Appellate Body to complete
the analysis based on inte rpretation of the ordinary meaning of the terms used in
Article XX(j) and find that the situation of lack of manufacturing of solar cells and modules
therefore constitutes "general or local short supply" under Article XX(j).
(ii) The Panel erred in its ass essment that the DCR measures are not essential for
the acquisition of solar cells and modules.
17. In its assessment of whether or not the DCR measu res are essential under Article XX(j), the
Panel erred in characterizing India's DCR measure as one which can assure that Indian SPDs
"have access to a continuous and affordable supply of the solar cells and modules." 10 The
Panel's conclusion had absolutely no basis in the facts and arguments before it. India 's
justification for the DCR measures was that the measur es are essential because they reduce
the risks linked to predominant dependence on imports.
18. The difference is crucial: India 's DCR measures is not about "affordable supply of solar cells
and modules" to Indian SPDs; but that the energy security objective in India's solar policy
requires India to reduce the risks linked to predominant dependence on imports. India
requests that the Appellate Body to reverse the Panel's findings and conclusions based on its
erroneous assessment, and complete the analysis with regard to the justification of the DCR
measures.
19. The Panel notes that the question of whether the acquisition or distribution of products is
essential for fulfilment of a policy objective, is irrelevant. 11 India disagrees, for the reason
that the "acquisi tion or distribution" for the purpose of Article XX(j) cannot be seen in
isolation of why such acquisition or distribution is essential. India requests the
Appellate Body to reverse the Panel 's findings and find that acquisition under Article XX(j)

8 Panel report, paras. 7.209-7.213.
9 Panel Report, para. 7.236.
10 Panel Report, paras. 7.189, 7.190, 7.337-7.342, 7.350, 7.351, 7.354, 7.360-7.363, 7.366-7.368 and
7.380.
11 Panel Report, para. 7.346.

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cannot be justified merely by existence of short supply; but by a justification of why such
acquisition is essential to redress the short supply, which can be done only with reference to
a policy objective, which in India 's case is achieving energy security and e cologically
sustainable development.
20. The Panel erred in its assessment that for assessing contribution of the DCR measures, it
needs to assess whether all Indian manufactured cells and modules are exclusively
consumed by Indian SPDs. 12 India requests the A ppellate Body to reverse this finding and
instead find that the contribution of the DCR measures needs to be assessed in the context
of how they seek to address the issue of risks of import dependency; and not from the
perspective of exclusive use by Indian SPDs.
21. The Panel has noted some of the arguments relating to the parties ' arguments on the issue
of reasonably available alternatives for the purpose of Article XX of the GATT 1994. In this
regard, India has presented in its submissions a few critical el ements that the Panel has not
recorded, to enable the Appellate Body to complete the analysis regarding th e availability of
alternatives.
(iii) The Panel acted inconsistently with Article 11 of the DSU.
22. India also requests the Appellate Body to find that the Panel ac ted inconsistently with
Article 11 of the DSU in in misinterpreting India 's arguments on "sufficient manufacturing
capacity";13 by disregarding India 's justification for the DCR measures, and substituting it
with one which had no basis in India 's submissions;14 and in arriving at various conclusions
based on a piecemeal and selective analysis of two reports, without providing India due
process rights to respond to its conclusions.15
(iv) Findings and conclusions with regard to Article XX(j) of the GATT 1994.
23. India requests the Appellate Body to reverse the Panel 's conclusion that the DCR measures
are not justified under Article XX(j) of the GATT 1994 and to complete the analysis under
Article XX(j) to find that:
i. India's lack of manufacturing capaci ty of solar cells and modules amounts to a
situation of local and general short supply of such products in India.
ii. The DCR measures are essential for addressing the local and general short supply of
solar cells and modules, and these are justified under Art icle XX(j) of the GATT 1994
because they meet with the requirements of the chapeau of Article XX.
SUMMARY OF ISSUES UNDER ARTICLE XX(D)
24. Should the Appellate Body find that the DCR measures are not justifiable under Article XX(j)
of the GATT 1994, then Ind ia requests the Appellate Body to find that the Panel erred in its
conclusion that the DCR measures are not justified under the general exception in
Article XX(d) of the GATT 1994.
25. India's defence was premised on its need to secure compliance with instrum ents of both
international and domestic law which mandate it to take appropriate actions for securing
ecologically sustainable growth and sustainable development. The Panel erred in its
assessment that none of these instruments justify the use the DCR meas ures to secure
compliance with them.16
26. With regard to the instruments of international law, the Panel erroneously concluded that
because the government, through its executive wing, takes actions pursuant to

12 Panel Report, para 7.366.
13 Panel Report, para 7.226.
14 Panel Report, paras. 7.189, 7.190, 7.237, 7.337-7.342, 7.350, 7.351, 7.354, 7.360-7.363,
7.366-7.378 and 7.380.
16 Panel Report, para. 7.333.

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implementation obligations arising from instrumen ts of international law, these instruments
have no "direct effect" in India, and cannot be considered as laws or regulations for the
purposes of Article XX(d). 17 This ignores the fundamental aspect that it is because
international law has direct effect, tha t the executive wing of the government is required to
take implementation action in the first place.
27. The Panel rejected the domestic law instruments identified by India constitute "laws and
regulations" because they are in the nature of action plans and p olicies, rather than laws
enacted by the legislature. 18 This ignores that the legal framework in India comprises of
both binding laws, as well as policies and plans that provide the framework for executive
action.
28. India requests the Appellate Body to rever se the Panel's findings that the international and
domestic laws and regulations identified by India, are not laws and regulations for the
purpose of Article XX(d). India further requests the Appellate Body to complete the analysis
to find that the legal i nstruments identified by India constitute laws and regulat ions for the
purpose of Article XX(d) of the GATT 1994, and further that the DCR measures are
necessary for securing compliance with the mandate under these laws and regulations
regarding ecologically sustainable growth and sustainable development.

17 Panel Report, paras. 7.298, 7.301.
18 Panel Report, para. 7.318.

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ANNEX B-2
EXECUTIVE SUMMARY OF THE UNITED STATES' APPELLEE'S SUBMISSION1
1. India does not appeal the Panel 's finding in India – Solar Cells that the requirement under
the Jawaharlal Nehru National Solar Mission ("JNNSM") that certain suppliers of electricity
use Indian solar cells and modules (the "DCR measures") are prima facie inconsistent with
Article III:4 of the GATT 1994 and Article 2.1 of the TRIMs Agreement. Its appeal is limited
to the Panel's rejection of various defenses that India raised under Article III:8(a),
Article XX(j), and Article XX(d) of the GATT 1994.
2. The Panel correctly rejected India's efforts to defend the WTO inconsistency. First, India
asserted that the DCR measures were laws, r egulations, or requirements governing the
procurement by governmental agencies of products purchased for governmental purposes,
and that Article III:8(a) took them outside the scope of Article III. The Panel found,
however, that because India procured electricity under the DCR measures, the exemption
under Article III:8(a) did not apply to India's discrimination against a different product, solar
cells and modules.
3. Second, India sought refuge in the Article XX(j) exception for measures essential to the
acquisition of products in general or local short supply. The Panel rejected this argument
because it concluded that Indian solar power developers' ( "SPDs") ready access to imported
solar cells meant there was no general or local short supply that would justi fy resort to
Article XX(j).
4. Third, India argued that the DCR measures qualified for the Article XX(d) exception because
they were necessary to secure compliance with various Indian obligations under
international agreements related to ecologically sustain able growth and sustainable
development. The Panel rejected this argument because Article XX(d) applies to measures to
secure compliance with a Member's domestic laws and regulations, and India had not
established that these international commitments had d irect application in India's domestic
legal system.
5. India asserts on appeal both that the Panel made legal errors in its evaluation of
India's defenses and that it failed to carry out its duties under Article 11 of the DSU. As
general matter, India 's Arti cle 11 appeals rely on allegations that the Panel failed to
"consider" certain evidence or arguments proffered by India. The fact that a panel does not
address every piece of evidence presented by a party does not give rise to a claim of error
under Articl e 11. 2 Nor does Article 11 impose an obligation on a panel to address in its
report every argument raised by a party. For these reasons, India has not identified any way
in which the Panel failed to make an objective assessment of the matter before it. The re is
accordingly no basis to reverse the Panel's findings under Article 11.
6. India's legal arguments fare no better. The Panel found that India 's discrimination against
imported solar cells and modules cannot be justified under Article III:8(a) of GATT 19 94
because solar cells and modules are not among the "products purchased" by India under the
DCR measures at issue in this dispute. The Panel's finding follows the reasoning laid out by
the Appellate Body in Canada – Renewable Energy / Feed -In Tariff Progr am when it found
that Article III:8(a) does not apply when a Member procures one product, but discriminates
against a different product .3 Specifically, the Panel found that (1) the "product purchased"
by the government under the DCR measures is electricity , whereas the products facing
discrimination under those measures are generation equipment, namely solar cells and
modules; and (2) electricity and solar cells and modules are not in a competitive

1 Pursuant to the Guidelines in Respect of Executive Summaries of Written Submissions, WT/AB/23
(March 11, 2015), the United States indicates that this executive summary contains a total of 2,146 words
(including footnotes), and this U.S. appellee submission (not including the text of the executive summary)
contains 21,480 words (including footnotes).
3 See Canada – Renewable Energy / Feed-In Tariff Program, para. 5.63.

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relationship. India acknowledged that the government does not actually purchase, physically
acquire, or take title or custody of any solar cells or modules under its DCR measures. Thus,
the governmental procured of electricity did not excuse India from its national treatment
obligations under Article III with respect to solar cells and modules.
7. On appeal, India asserts that the Panel failed to consider its argument that electricity is
indistinguishable from solar cells and modules. The Panel, however, explicitly addressed that
argument, and found it inapposite in light of the broader conclusion that India could not be
understood to have procured solar cells and modules for purposes of Article III:8(a) when it
never actually purchased, acquired, or had possession of them.
8. India also asserts that the Panel failed to consider its related argument that solar cells and
modules are inputs into the electricity procured by India, and that this relationship makes
Article III:8(a) applicable to discrimination against the cells and modules. Again, the Panel
explicitly conside red this argument. But it found that India 's DCR measures were
indistinguishable "in any relevant respect " from the DCRs that the Appellate Body found to
fall outside the coverage of Article III:8(a) in Canada – Renewable Energy / Feed -In Tariff
Program. T he Panel thus discerned no reason why the Appellate Body 's interpretation of
Article III:8(a), as developed and articulated in Canada – Renewable Energy / Feed-In Tariff
Program, should not guide the Panel's examination of India's DCR Measures.
9. In light o f these findings, the Panel found it unnecessary to assess India 's DCR measures
under the remaining elements of Article III:8(a). India requests that if the Appellate Body
reverses the Panel on the threshold question, it complete the Panel's analysis with respect to
these issues.
10. However, the findings of the Panel and undisputed facts cited by India do not support the
conclusions it advocates. The procurement of electricity does not satisfy the "governmental
purpose" criterion of Article III:8(a) because g overnment agencies are only incidental users
of the electricity purchased, and India has provided no basis to conclude that the sale to
commercial entities and private households is a governmental purpose. In addition, the
direct purchasers of the power ar e profit-making entities, and they resell the electricity to
consumers seeking to maximize their own interest, precluding a conclusion that the
government purchases are "not with a view to commercial resale."
11. The Panel also rejected India's arguments with respect to Article XX(j) of the GATT 1994 ,
which provides that nothing in the GATT 1994 shall be construed to prevent the adoption or
enforcement by any Member of measures "essential to the acquisition or distribution of
products in general or local short supply." The Panel correctly found that, in light of India 's
ready access to imported solar cells and modules, India could not defend its DCR measures
under Article XX(j) of the GATT 1994 as "essential" for the "acquisition of products in short
supply."
12. India argued that solar cell and modules are in "local short supply " in India because it
"lack[s] manufacturing capacity of solar cells and modules. " The Panel concluded that the
phrase "products in general or local short supply " refers to a situation in w hich the quantity
of available supply of a product, from all sources, does not meet demand in a relevant
geographical area or market. " It observed that India did not dispute that there was a
sufficient quantity of solar cells and modules available in India from all sources (i.e.,
imported and domestically manufactured) to meet the demand of India consumers.
13. On appeal, India alleges that the Panel erred by finding that a product cannot be in "general
or local short supply " for a Member if its consumers can acquire the product through
importation. However, Article XX(j), by its terms, is concerned solely with situations
involving the ability to acquire the product in purported short supply. It does not
differentiate between domestic production and importation for determining whether supply is
"short". Thus, where the consumers of a Member are satisfying demand for a product
through importation or through a combination of importation and local production , that
product cannot be in "general or local short supply " within the meaning of Article XX(j). The
Panel was therefore correct to conclude that solar cells and modules are not "products in
general or local short supply" in India.

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14. India also asserts that the Panel made several legal errors in its "limited analy sis" of
whether India's DCR measures are "essential" within the meaning of Article XX(j). The Panel
observed that "the relevant question under Article XX(j) is whether [India 's] DCR measures
are 'essential to the acquisition' of products in short supply, [] not whether the acquisition of
those products is in turn essential for the achievement of some wider policy objective. " On
appeal, India argues that this issue must "be seen in the context of the policy objectives of
such acquisition." India's assertion is without merit because Article XX(j), by its terms, is
concerned with whether the measure at issue is "essential to the acquisition " of a product,
not whether the product itself – or even acquisition of the product – is essential.
15. Finally, the Panel als o rejected India's arguments regarding Article XX(d), which provides
that nothing in the Agreement shall be construed to prevent the adoption or enforcement by
any Member of measures "necessary ... to secure compliance with laws or regulations which
are not inconsistent with the provisions of this Agreement. " India cited several international
and domestic instruments as "laws or regulations " for purposes of Article XX(d). The Panel
correctly found that none of these instruments (with the exception of Sectio n 3 of India 's
Electricity Act) were "laws or regulations" within the meaning of Article XX(d). With respect
to Section 3 of the Electricity Act, the Panel found that India had failed to demonstrate that
its DCR measures were measures to "secure compliance" with legal provisions of that Act. In
light of these findings, the Panel found it unnecessary to examine whether the India 's DCR
measures were "necessary" within the meaning of Article XX(d).
16. On appeal, India contends that the Panel erred in finding tha t the international instruments
cited by India do not have direct effect in India, and that the domestic instruments cited by
India do not constitute "laws and regulations " within the meaning of Article XX(d). India's
assertions are without merit.
17. India does not dispute that the executive branch in India must take certain "implementing"
actions before international law obligations enter into legal effect in India, but argues that
the international instruments do have "direct effect" because "the legislature is not required
to legislate on a domestic law incorporating the international law into domestic law. "
However, t he Appellate Body 's findings in Mexico – Soft Drinks clarify that where a
"regulatory act " is necessary for an international obligation to ha ve domestic effect, that
obligation is not in and of itself part of a Member 's laws and regulations for purposes of
Article XX(d) . As that is the case with India's executive "implementing" measures, India's
argument presents no basis to reverse the Panel's finding.
18. The Panel found that the domestic law instruments cited by India , with one exception, - are
not "law and regulations " for purposes of Article XX(d) because India cited only "hortatory,
aspirational and declaratory language " that is not "legally enforceable."4 India argues on
appeal that the Panel erred because these measures, while non-binding are nonetheless part
of India's legal system, and that although they do not prescribe specific action, they do
"mandate achieving ecologically sustainable growth," which is more than a mere
"objective."5 These assertions do not undermine the Panel's conclusions. Panels have
consistently found that "to secure compliance," within the meaning of Article XX(d), means
to enforce obligations under laws and regulat ions," not "to ensure the attainment of the
objectives of the laws and regulations. "6 The most India shows in its appeal is that these
domestic measures lay out important, and even critical, objectives. That does not make
them the type of laws and regulations to which Article XX(d) applies.
19. The Panel found India's reference to Section 3 of the Electricity Act unavailing because that
provision requires the government to prepare a National Electrical Policy and tariff policy,
and the DCRs do nothing to enfor ce this legal requirement. 7 India states on appeal that it
did not mean to cite this law on its own, but as one element of legislative scheme
encompassing the other cited measures that collectively "mandate" action to achieve

5 India's appellant submission, paras. 174-175.
6 Canada – Wheat Exports and Grain Imports (Panel), para. 6.248.

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"ecologically sustainable grow th."8 Thus, India does not directly appeal the Panel's findings
with regard to Section 3.
20. In the event the Appellate Body reverses the Panel 's "law or regulations" finding, India has
requested the Appellate Body to complete the Panel 's analysis with respe ct to whether
India's DCRs measures are "necessary" within the meaning of Article XX(d) India, however,
has failed to establish that its DCR measures even "contribute to" India's "compliance" with
any of the legal instruments that it identifies, much less that the DCRs measures are
"necessary" to secure compliance. Therefore, it has failed to identify any basis for the
Appellate Body to find the DCR measures to be "necessary."

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ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of Brazil's third participant's submission C-2
Annex C-2 Executive summary of the European Union's third participant's submission C-3
Annex C-3 Executive summary of Japan's third participant's submission C-5

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ANNEX C-1
EXECUTIVE SUMMARY OF BRAZIL'S THIRD PARTICIPANT'S SUBMISSION
1. Brazil addresses in this submission an issue central to the policy space Members have in
connection to government procurement: the scope of Article III:8(a) of GATT 1994, and
discusses the relevant findings of the Appellate Body in Canada – Renewable Energy / FIT.
2. Brazil understands that the Appellate Body did not accept Canada's arguments that the
FIT Programme qualified under the terms of Article III:8(a), basically because the product
purchased by t he Canadian agency "[was] not the same as the product that [was] treated
less favourably", and they were not in a competitive relationship. Brazil emphasizes the fact
that there is no finding by the Appellate Body in the Canada – Renewable Energy / FIT case
with regard to the inclusion of inputs or production processes under Article III:8(a).
3. Brazil considers that there is no reason to exclude a priori the possibility that the purchase
of inputs may be covered by the derogation under Article III:8(a). Braz il understands that
the competitive relationship test does not apply in all cases. The purchase of inputs to be
assembled into a final product purchased by a government may be tantamount to the
purchase of the final good. If the Appellate Body considers th at the products at issue in the
present dispute are inputs necessary to produce the products purchased by governmental
agencies for governmental purposes, under Article III:8(a), then it should also take into
account the possibility that the purchase of th ose inputs may also be within the purview of
Article III:8(a).

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ANNEX C-2
EXECUTIVE SUMMARY OF THE EUROPEAN UNION'S THIRD PARTICIPANT'S SUBMISSION1
1. India makes several allegations of error, mainly based on Article 11 of the DSU, with respect
to Articles III:8(a), XX(j) and XX(d) of the GATT 1994.
2. At the outset, the European Union recalls that, as clarified by the Appellate Body, Article 11
of the DSU obliges panels to make "an objective assessment of the matter before it'". Since
India's claims of error are based on Article 11 of the DSU, the Appellate Body should
consider first and foremost whether the alleged failure to "consider" some of India's
arguments before the Panel reaches the level of a violation of Article 11 of the DSU.
3. With respect to Art icle III:8(a) of the GATT 1994, the Panel appears to have based its
findings on the fact that it was not persuaded that the measures at issue are distinguishable
from those in Canada – FIT. In doing so, the Panel rejected some of the arguments raised
by India in the present appeal. To the extent that the Appellate Body agrees with the Panel's
ultimate finding, the European Union does not see that the alleged lack of examination of
certain arguments would amount to an error under Article 11 of the DSU.
4. In this context, the Appellate Body may want to recall its previous finding in Canada – FIT
that Article III:8(a) of the GATT 1994 did not apply to DCRs imposed on generation
equipment used by renewable energy producers, because the product being procured was
electricity. Those products are not in a competitive relationship. The European Union
considers that the situation in the present case is identical and that the Appellate Body
should reach the same conclusions, regardless of whether DCRs cover all or only some of
the types of equipment used to generate electricity.
5. The European Union further disagrees with India's formalistic reliance on footnote 523 of the
Appellate Body Report in Canada – FIT, relating to discrimination with respect to inputs.
When procuring products, governments may impose certain conditions on inputs or methods
of production which add to and are connected to the basic nature of the product purchased.
However, the view that the relevant test is of "competitive relationship", as outline d by the
Appellate Body, not of "close relationship". Article III:8(a) does not permit the inclusion of
origin-related discriminatory requirements in the procurement of goods with respect to other
goods which are not the subject -matter of the actual procur ed product in question and
bearing no competitive relationship.
6. The European Union further disagrees with India's interpretation of the distinction made by
the Appellate Body in Canada – FIT between "procurement " and "purchase". Under
Article III:8(a), t he connection between "procurement", the "requirements" that "govern"
procurement, and the "products purchased" is vital in order to avoid an interpretation of
Article III:8(a), like the one suggested by India, that could lead to circumvention of the
national treatment obligation.
7. The European Union also disagrees that the procurement under the DCR measures is for all
products purchased "for governmental purposes", such as energy security. The terms
"governmental purposes" or the "needs of the government" do not refer to public policy
objectives as such, but rather to the purchase of goods that will be used by a government,
for its own consumption or use in the performance of its functions.
8. Finally, the European Union disagrees with India's interpretatio n of the phrase "and not with
a view to commercial resale or with a view to use in the production of goods for commercial
sale". The European Union does not share either India's reliance on any absence of
profitability as relevant for the last element in Article III:8(a).

1 Total words of the submission (including footnotes but excluding the executive summary) = 12,227;
total words of the executive summary = 1,182.

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9. India also maintains that the Panel erred in finding that the DCR measures were not justified
under the general exception in Article XX(j).
10. Some of India's allegations of error connected to Article XX(j) of the GATT 1994 pertain to
Article 11 of the DSU. The Appellate Body should thus consider whether the alleged failure
to consider some of the arguments raised by India, or the alleged mischaracterisation of
India's arguments, reaches the level of a violation of Article 11 of the DSU.
11. Article XX(j) does not entitle WTO Members to an "equitable share" in the global or local
production of a certain product. Rather, it enables them to adopt certain measures in order
to address general or local shortages in the availability of that product. With that in mind,
the connection drawn by the Panel between the reference to the supply of a product in
Article XX(j) and the demand for such a product appears appropriate. A separate issue is
where, i.e. in what geographical area, a product is said to be in short supply. In that
respect, the Panel has rightly adopted a flexible interpretation of the terms "general or local"
in Article XX(j).
12. India faults the Panel's analysis of whether the DCR measures are essential with mistakenly
finding that their obj ective to ensure that "Indian SPDs have access to a continuous and
affordable supply of the solar cells and modules", instead of achieving "energy security,
sustainable development and ecologically sustainable growth". The European Union agrees,
in princip le, that the broader objective informs the more specific objective, and that this
should be reflected in the analysis. However, in the context of an analysis of necessity or
"essentiality" of a measure under Article XX of the GATT 1994, the narrower the re gulatory
objective, the likelier it is that the invoking party will prevail.
13. With respect to the international instruments, it appears that India does not take issue with
the Panel's interpretation of the legal requirements of Article XX(d) but rather wit h the
Panel's factual assessment. If this understanding is correct, the European Union considers
that such a claim would not be properly before the Appellate Body, since India does not
appear to have raised an allegation of error under Article 11 of the DSU.
14. With respect to the domestic instruments, the European Union comments on the
Panel's general interpretation of the terms "laws or regulations" in Article XX(d).
15. The Appellate Body in Mexico – Taxes on Soft Drinks found that "laws and regulations"
refers simply to "rules that form part of the domestic legal system of a WTO Member". The
Appellate Body has also not demanded absolute certainty regarding the efficiency of the
measure or the use of coercion. The European Union is thus not convinced that the terms
"laws or regulations" should only cover "legally enforceable rules of conduct" or "mandatory
rules applying across -the-board." Domestic laws or regulations may be adopted either by
the legislative or by the executive. They may have different kinds of legal effects and need
not be fully binding in all situations, yet nevertheless require various governmental bodies of
the Member concerned to take compliance action. Finally, it may be appropriate to read
several laws or regulations together, even when t hose laws or regulations are adopted by
different levels or branches of government.

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ANNEX C-3
EXECUTIVE SUMMARY OF JAPAN'S THIRD PARTICIPANT'S SUBMISSION1
1. Japan addresses in its third participant submission the prop er legal interpretation of the
"government procurement exemption" in GATT 1994 Article III:8(a), as well as the general
exceptions in GATT 1994 Article XX(d) and (j) invoked by India.
2. As for the scope of the term "products purchased" under Article III:8(a) of the GATT the
Panel correctly deter mined in this dispute that , just as in Canada – Renewable
Energy/Feed-in Tariff Program , the product discriminated against by India, by reason of its
origin, is generation equipment (i.e., solar cells and modules), while electricity is the
"product purchased". Contrary to India's position, solar cells and modules and electricity are
distinguishable. There is no basis to characterize solar cells and modules as "inputs" for solar
power generation.
3. Japan submits that even if the Panel were to find that electr icity and solar cells and modules
were the "products purchased", purchases of electricity by the Government of India under
the JNNSM Programme cannot be viewed as purchases "for governmental purposes" under
Article III:8(a).
4. Article XX(j) cannot be applied to the DCR Measures. According to the terms, context, as
well as negotiating history of Article XX(j), this article addresses only export measures that
restrict access to, and secure an equitable share of, the supply of a product.
5. India's argument that the acquisition of solar cells and modules is "essential" to
India's policy objective of energy security is premised on the false proposition that "general
or local short supply" applies to the lack of domestic manufacturing capacity and simply
assumes that the DCR measures are for the acquisition of a product in short supply. The
"acquisition" of the products is the objective with which the "essential" relationship with the
DCR must be established; the "acquisition" of the products need not be shown to be
"essential" to some other broader policy objectives.
6. As regards reasonably available alternatives, even if one were to assume that, in ensuring
that the development of solar power would not be entirely dependent on the importation of
cells and modules, In dia were pursuing a legitimate policy objective fo r purposes of GATT
1994 Article XX, it could have provided WTO -consistent subsidies to manufacturers of such
cells and modules instead of imposing DCR requirements.
7. Article XX(d) cannot be applied to the D CR Measures either. First, the fact that an
international instrument "forms the basis for executive action" in a WTO Member does not
determine whether such instrument has direct effect on the domestic legal system of that
Member. Second, whether a particular domestic instrument constitutes "laws or regulations"
under Article XX(d) is a matter of WTO law.
Third Participant Submission contains 4508 words (including footnotes).

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ANNEX D
PROCEDURAL RULING
Contents Page
Annex D-1 Procedural Ruling of 4 May 2016 regarding modification of the dates for the
filing of written submissions
D-2

- D-2 -

ANNEX D
PROCEDURAL RULING OF 4 MAY 2016
1. On 20 April 2016, India filed a Notice of Appeal in the above proceedings. In accordance with
Rule 26 of the Working Procedures for Appellate Review (Working Procedures), a Working Schedule for
Appeal was drawn up by the Appellate Body Division hearing this appeal and circulated to the
participants and the third parties on 22 April 2016.
2. On 2 May 2016 , the Division received a letter from the United States requesting an extension of
the deadline for the filing of its appellee submission in these proceedings. The United States noted that
its appellee submission in another pending appellate proceeding, namely, United States – Anti-Dumping
and Countervailing Measures on Large Residential Washers from Korea (DS464), is also due on 9 May
2016, i.e. the same day as for the filing of its appellee submission in the present proceedings. Referring
to the size of the appeals in these two disputes, the United States indicated that its submissions may be
significant in scope. The United States also pointed to the large number of print copies of its appellee
submissions to be prepared for the Divisions and to be served on the participants and third parties in
these two disputes. The United States therefore requested that the deadline for the filing of the appellee
submission be extended by one day, such that it would be due on 10 May 2016.
3. On 3 May 2016, we invited India and the third parties to comment by 12 noon today on the
United States' request. We received no objections to the United States' request. Norway submitted that
if the United States' request were granted, the deadline for the filing of third participants' submissions
should similarly be extended to ensure that third participants can contribute in an informed and efficient
manner in the appellate proceedings.
4. We consider the reasons identified by the United States, in particular the need for the
United States to file appellee submissions in two separate appeal proceedings on the same day, to be
relevant factors in our assessment of "exceptional circumstances , where strict adherence to a
time-period … would result in a manifest unfairness" pursuant to Rule 16(2) of the Working Procedures.
As a further relevant consideration, we note that India and the third participants have not raised any
objection to the United States' request.1
5. In these circumstances, the Division has decided to extend the deadline for the United States to
file its appellee submission by one day to Tuesday, 10 May 2016.
6. Furthermore, we recall that the third participants' submissions under the original Working
Schedule would have been due on Wednesday, 11 May 2016, i.e. one day after the revised deadline for
the filing of the appellee 's submission. In order to provide the third p articipants sufficient time to
incorporate reactions to the appellee submission into their third participants' submissions, the Divisio n
has decided, pursuant to Rule 16 of the Working Procedures, to extend the deadline for the filing of the
third participants' submissions and third participants' notifications to Thursday, 12 May 2016.