CANADA – CERTAIN MEASURES AFFECTING THE RENEWABLE ENERGY GENERATION SECTOR
Document: CANADA – MEASURES RELATING TO THE FEED-IN TARIFF PROGRAM Communication from the Panels The Panels have asked the Chairperson of th e Dispute Settlement Body ("DSB") to circulate to the Members for their information, the follo wing communication dated 23 May 2012 from the Chairperson of the Panels to the Chairperson of the DSB.
Date: 25 May 2012
Document codes: WT/DS412/8; WT/DS426/7; WT/DS412/5
Complainant: EU
Respondent: Canada
Third parties: U.S., Japan, Australia, China, Taiwan, India, Saudi Arabia, Brazil, South Korea, Mexico, Norway, Turkey, El Salvador
Dispute stage: Appellate Body
Agreements cited: Art. 3.1(b), 3.2, 1.1  Subsidies and Countervailing Measures (SCM)Art. III:4  GATT 1994Art. 2.1  Trade-Related Investment Measures (TRIMs)

CANADA – CERTAIN MEASURES AFFECTING THE RENEWABLE
ENERGY GENERATION SECTOR

CANADA – MEASURES RELATING TO THE FEED-IN TARIFF PROGRAM

Communication from the Panels

 The Panels have asked the Chairperson of th e Dispute Settlement Body ("DSB") to circulate
to the Members for their information, the follo wing communication dated 23 May 2012 from the
Chairperson of the Panels to the Chairperson of the DSB.

 On 4 November 2011, Canada submitted to th e Panel in DS412 a request for a preliminary
ruling concerning the consistency of Japan's request for the establishment of a Panel ()
with Article 6.2 of the Dispute Settlement Understanding ("DSU").

 On 20 January 2012, a Panel was established in DS426 pursuant to the European Union's
request for the establishment of a Panel () . On 24 January 2012, a Panel was constituted
in DS426, with the same members serving as th e Panel in DS412 (). Following
consultations with the parties, the Panels in the two disputes decided to harmonize their timetables to
the greatest extent possible, in accordance with Article 9.3 of the DSU.

 On 14 February 2012, Canada submitted to th e Panel in DS426 a request for a preliminary
ruling concerning the consistency of the European Union's request for the establishment of a Panel
() with Article 6.2 of the DSU.

 On 11 May 2012, the Panels issued the enclosed preliminary rulings to the parties. The
preliminary rulings will become an integral part of the Panel's final report, subject to any changes that
may be necessary in the light of comments received from the parties during Interim Review.

 After consulting the parties to the disputes, the Panels decided to inform the DSB of the
content of its preliminary rulings. Therefore, I w ould be grateful if you would circulate the body of
this letter and the enclosed preliminary rulings as document WT/DS412/8-WT/DS426/7.

PRELIMINARY RULINGS BY THE PANELS

1. Arguments of the Parties
(i) Canada
1. Canada asks the Panel to make a preliminary ruling on the consistency of the separate panel
requests ("Panel Requests" collectively, and "Panel Request" individually) presented by Japan and the
European Union ("the Complainants") in DS412 and DS426 with the standards of clarity set out in
Article 6.2 of the Dispute Settlement Understanding ("DSU"). According to Canada, the claims under
the SCM Agreement described in the two Panel Requests fail to provide a "brief summary of the legal
basis" that is "sufficient to present the problem cl early", and should therefore be struck out of the
Panel's terms of reference.
1
2. Canada argues that the Complainants' Panel Requ ests do not identify the requisite legal bases
in a manner sufficient to present the problem clearly because they fail to properly describe the nature
and type of the alleged subsidy that is being cha llenged. In particular, Canada observes that although
a measure cannot breach Article 3 of the SCM Agre ement unless a subsidy has been found to exist,
the description found in the respective Pane l Requests of the Complainants' claims under
Articles 3.1(b) and 3.2 of the SCM Agreement "does not identify the constituent elements of the
alleged 'subsidy' … and does not even cite the spec ific sub-paragraphs of Article 1.1" upon which
those claims are based.
2 Thus, Canada asserts that the Panel Requests do not identify the particular
"financial contribution" that is at issue, "what government or public body and, if relevant, private
body was involved in the financial contribution, and how and to whom a benefit was thereby
conferred."3 According to Canada, such specific informa tion about the nature a nd type of an alleged
subsidy that is being challenged in WTO dispute settlement proceedings has been clearly identified in
panel requests pertaining to a number of previous disputes.4
3. Canada explains that, pursuant to the due process requirement present in Article 6.2 of the
DSU, a defending party is entitled to know what case it has to answer, and what violations have been
alleged so that it can begin preparing its defence. 5 In this regard, Canada notes that the Appellate
Body reiterated in China – Raw Materials that the legal summary required by Article 6.2 of the DSU
must "explain succinctly how or why the measure at issue is considered by the complaining Member
to be violating the WTO obligation in question". 6 In Canada's view, the Complainants' Panel
Requests, by merely alleging that "the measures are subsidies", do not allow Canada to understand the

1 Canada, Request for a Preliminary Ruling (DS 412), paras. 2 and 25; Canada, First Written
Submission (DS412), paras. 102-113; Canada, Letter to the Panel of 14 February 2012 (DS426); and Canada,
First Written Submission (DS426), paras. 48-50.
2 Canada, Request for a Preliminary Ruling (DS412), para. 8; Canada, Letter to the Panel of
14 February 2012 (DS426).
3 Canada, Request for a Preliminary Ruling (DS412), paras. 2, 10, 14, and 18; Canada, Letter to the
Panel of 14 February 2012 (DS426).
4 Canada, Request for a Preliminary Ruling (DS412), paras. 11-13, referring to EC and Certain
Member States ‒ Large Civil Aircraft ; US ‒ Large Civil Aircraft ; Korea ‒ Commercial Vessels ; US ‒
Agriculture Subsidies; China ‒ Taxes; Canada, Letter to the Panel of 14 February 2012 (DS426).
5 Canada, Request for a Preliminary Ruling (DS412), paras. 15-18, quoting the Appellate Body Report,
Thailand ‒ H-Beams , para. 88, and Panel Reports, Canada ‒ Wheat Exports and Grain Imports , para. 6.10,
subpara. 28, and Japan ‒ DRAMs (Korea), para. 7.9; Canada, Letter to the Panel of 14 February 2012 (DS426).
6 Canada, Letter to the Panel of 14 February 2012 (DS426).

legal bases of their claims, leaving Canada to guess what the alleged "subsidy" might be. 7 Thus,
Canada submits that the Complainants' deficient Pa nel Requests have prejudiced its ability to prepare
a defence to their claims.8
(ii) Japan
4. Japan submits that Canada's arguments are "d eeply flawed" because they effectively read
Article 6.2 of the DSU as requiring not only a "brief summary of the legal basis of the complaint", but
also a summary of the arguments supporting the clai m being made in a panel request. According to
Japan, the latter is not intended to be the purpose of a panel request, but is instead the subject of the
detailed submissions beginning with the co mplaining party's first written submission.
9 Relying on
certain statements made by panels in previous disputes, Japan argues that Canada's request for a
preliminary ruling blurs the distinct and well recognized roles of a panel request, on the one hand, and
the parties' detailed written and oral submissions, on the other hand.
10
5. Moreover, in demanding that a panel request must clearly identify the elements of a subsidy,
namely, the financial contribution and the benef it, Canada is, according to Japan, confusing the
"significant difference" that the Appellate Body has explained exists "between the claims identified in
the request for the establishment of a panel, wh ich establish the panels terms of reference under
Article 7 of the DSU, and the arguments supporting those claims". 11 In this light, Japan argues that
the information Canada asserts must be included in Jap an's Panel Request is, in effect, the details of
Japan's argument about why the measures at issue m eet the definition of "subsidy". However, Japan
sees such information to constitute an argument, not a legal claim, as no legal claim arises
independently from satisfying the terms of Article 1.1 of the SCM Agreement. Japan recalls that the
Appellate Body explained that "arguments" constitute the details of what a complaining party adduces
"to demonstrate that the responding party’s measur e does indeed infringe upon the identified treaty
provision".12 Japan points out that, in the present dispute, its claim is that there is a violation of
Articles 3.1(b) and 3.2 of the SCM Agreement. To establish this claim, Japan argues that it must
demonstrate that the measure qualifies as a "subsid y" within the meaning of Article 1.1 of the
SCM Agreement. In Japan's view, this latter factor is part of the argument necessary to demonstrate
the legal claim under Articles 3.1(b) and 3.2. Accord ing to Japan, it is not an independent claim, and
therefore cannot be part of the legal basis of its complaint.13
6. In any case, Japan argues that a reading of its Panel Request as a whole makes evident that: (i)
a "financial contribution" within the meaning of any of the sub-paragraphs of Article 1.1(a)(1) or "any
form of income or price support" within the meaning of Article 1.1(a)(2) results from the "guaranteed,
long-term pricing" under the province of Ontari o's FIT Programme; (ii) the entities involved in
providing that "financial contribution" or "inc ome or price support" include the government of
Canada, the government of Ontario, the OPA, and th e IESO; and (iii) the "financial contribution" or
"income or price support" confer terms more advantageous than available on the market to "renewable

7 Canada, Request for a Preliminary Ruling (DS412), paras. 8, 14, and 18; Canada, Letter to the Panel
of 14 February 2012 (DS426).
8 Canada, Request for a Preliminary Ruling (DS412), paras. 15-16; Canada, Letter to the Panel of
14 February 2012 (DS426).
9 Japan, Response to Canada's Request for a Preliminary Ruling, para. 4.
10 Japan, Response to Canada's Request for a Preliminary Ruling, para. 11, referring to Panel Reports,
11 Appellate Body Report, Thailand – H-Beams, fn. 36, quoted in Japan, Response to Canada's Request
12 Appellate Body Report, US – Oil Country Tubula r Goods Sunset Reviews , para. 162 (quoting
Appellate Body Report, Korea – Dairy, para. 139).
13 Japan, Response to Canada's Request for a Preliminary Ruling, para. 21.

energy generation facilities". Thus, Japan asserts that its panel request identifies that "the measures
are subsidies within the meaning of Article 1.1 of the SCM Agreement".
14
7. Finally, Japan submits that because its Panel Re quest both "identif[ies] the specific measures
at issue" and "provide[s] a brief summary of the le gal basis of the complaint sufficient to present the
problem clearly", there is no basis for the Panel to find that Canada has been prejudiced in preparing
its defence.15
(iii) European Union16
8. The European Union asks the Panel to reject Canada's request for a preliminary ruling,
arguing that it is "entirely without merit".17
9. The European Union does not share Canada's view that the only manner to present the
problem clearly in accordance with Article 6.2 of th e DSU in a dispute where a measure is alleged to
be a subsidy under Article 1.1 of the SCM Agreem ent is by providing details about each of the
elements included therein. The European Union expl ains that the word "subsidy" is a defined term,
and no consequences arise from a measure falling within that definition. According to the
European Union, it is only when a "subsidy" is d eemed to be prohibited or causes adverse effects that
the subsidy in question can be considered to vi olate the SCM Agreement. The European Union
argues that the moment a Me mber identifies a measure as being a "subsidy" under the
SCM Agreement, it alerts the allegedly subsidizing Member that a particular measure can be deemed
as a subsidy and may violate Articles 3 or 5 of the SCM Agreement. Thus, the European Union
submits that the "problem" is presented clearly when a panel request specifies that the measure that is
considered to be a subsidy violates the obliga tions contained in Articles 3 or 5 of the SCM
Agreement.18
10. In any event, the European Union states that it fails to understand the basis for Canada's
request for a preliminary ruling. Even assuming that an obligation exists to specify how the measure
at issue can be characterised as a subsidy, the Eur opean Union alleges that its Panel Request was not
in this respect deficient. In particular, the Europ ean Union points out that its Panel Request explained
that the measure at issue provides guaranteed, ab ove-market long-term pricing for the output of
certain renewable energy generation facilities (wind and solar) – or, in other words, that there is price
support/financial contribution ("guaranteed… pricing" ), which confers a benefit ("above-market") to
the recipients (i.e., the FIT Generators). In additi on, the European Union notes that its Panel Request
identifies the entity providing the subsidy, i.e., th e Government of Ontario ("Canadian province of
Ontario").19
11. Finally, the European Union questions to what ex tent any alleged lack of clarity in its Panel
Request could have caused any prejudice to Canada in the present dispute. In this regard, the
European Union argues that in view of the similarities between DS412 and DS426, by the time the
European Union requested the establishment of th e Panel in DS426, Canada had already exchanged

14 Japan, Response to Canada's Request for a Preliminary Ruling, para. 15.
15 Japan, Response to Canada's Request for a Preliminary Ruling, para. 35.
16 The European Union's arguments in response to Canada's Request for a Preliminary Ruling in DS426
were set out in its own separate submission (European Union, Response to Canada's Request for a Preliminary
Ruling), and incorporated Japan's response to Canada's Request for a Preliminary Ruling in DS412, as well as
the arguments the European Union made in this regard as a third party in DS41 2. See European Union,
Response to Canada's Request for a Preliminary Ruling, para. 3.
17 European Union, Response to Canada's Request for a Preliminary Ruling, para. 3.
18 European Union, Response to Canada's Request for a Preliminary Ruling, para. 11.
19 European Union, Response to Canada's Request for a Preliminary Ruling, para. 12.

first written submissions with Japan and was aware of the European Union's views as a third party in
that dispute.20
2. Arguments of the Third Parties
(i) European Union
12. As a third party in DS412, the European Union agrees with Japan that Canada's request for a
preliminary ruling in DS412 is unwarranted. The Eu ropean Union argues that the identification of a
measure within the meaning of Article 6.2 of the DSU need only be framed with sufficient
particularity so as to indicate the nature of the measu re and the gist of what is at issue. Moreover, the
European Union submits that a brief summary of the legal basis of the complaint required by
Article 6.2 of the DSU aims to explain succinctly ho w or why the measure at issue is considered by
the complaining Member to be violating the WTO ob ligation in question. This brief summary must
be sufficient to present the problem clearly. In both respects, the European Union considers that,
when read "as a whole", Japan's Panel Request identified the specific measures at issue and provided a
brief summary of the legal basis of the complaint, as required by Article 6.2 of the DSU.
21
(ii) Japan
13. Relying on essentially the same arguments it presented as a party in DS412, Japan submits, as
a third party in DS426, that Canada's request for a preliminary ruling in DS426 has no merit. 22
Moreover, in Japan's view, the European Union's Pa nel Request clearly identifies the "problem" with
respect to the SCM Agreement that is caused by the enumerated measures relating to the FIT
Programme – that is, the FIT measures are "subsidies" as defined in Article 1.1 of the
SCM Agreement, that are "provided contingent upon the use of domestic over imported goods", and
thereby are inconsistent with Articles 3.1(b) and 3.2 of the SCM Agreement. According to Japan,
Canada's citation of the Appellate Body in China – Raw Materials – that the legal summary required
by Article 6.2 of the DSU must "explain succinctly how or why the measure at issue is considered by
the complaining Member to be violating the WTO obligation in question" – must be read in context of
the facts in that dispute, and that when it is so read it supports a finding in DS426 that the European
Union's Panel Request satisfies the requirements of Article 6.2 of the DSU.23
(iii) Korea
14. Korea submits that Canada has not presented a sufficient basis for dismissing Japan's claims
under the SCM Agreement in DS412. Korea recalls th at the Appellate Body has previously held that,
in the absence of prejudice to the defending party, a simple listing of measures and relevant treaty
provisions may in some cases be sufficient to satis fy the requirements of Article 6.2 of the DSU. 24
Moreover, Korea observes that the Appellate Body has stated that the "procedural rules of WTO
dispute settlement are designed to promote, not th e development of litigation techniques, but simply

20 European Union, Response to Canada's Request for a Preliminary Ruling, footnote 6.
21 European Union, Third Party Written Submission (DS412), paras. 9-12.
22 Japan, Third Party Written Submission (DS426), para. 3.
23 Japan, Third Party Written Submission (DS426), paras. 10-11.
24 Korea, Third Party Written Submission (DS412), para. 9, referring to Appellate Body Report, Korea
– Dairy, paras. 124 and 127.

the fair, prompt and effective resolution of trade disputes". 25 Korea "does not believe that allowing
Japan's claims under the SCM Agreement to go forward would be inconsistent with that goal."26
(iv) Mexico
15. Mexico considers that the Complainants' Panel Requests in DS412 and DS426 comply with
the requirements of Article 6.2 of the DSU in th at they each identify the government authority
responsible for granting the alleged subsidy (the go vernment of Canada or the province of Ontario),
the financial contribution at issue (in the form of guaranteed, long-term prices for electricity produced
from renewable generators), and the benefit (the guar anteed prices). Mexico observes that there have
been requests for panels to make preliminary ru lings on the consistency of panel requests with
Article 6.2 in a number of recent disputes, and cau tions that such requests should not be used as a
litigation tactic to gain procedural advantages.27
(v) United States
16. The United States considers that the Complainants' Panel Requests in DS412 and DS426
satisfy the standard of clarity that is required by Article 6.2 of the DSU. The United States explains
that the Complainants' Panel Requests provide a brie f summary of the legal bases of their complaints
by setting forth their view that the measures viol ate provisions of the WTO Agreement "because they
constitute a prohibited subsidy, and also discrim inate against equipment for renewable energy
generation facilities produced outside Ontario", identifying the specific provisions of the WTO
Agreement that they believe are violated. The United States agrees with the Complainants that
Article 6.2 of the DSU does not require them to set out their arguments as to why the measures meet
the definition of subsidy. Rather, according to the United States, all that the Complainants are
required to state is the legal bases of their complaints, which in its view, they have done.
 28
3. Analysis
17. The focus of Canada's request for a preliminary ruling in both disputes is the alleged lack of
clarity in the legal bases supporting the Complainants' subsidy complaints, as presented in the
respective Panel Requests. Importantly, Canada does not take issue with the Complainants'
descriptions of the relevant measures, nor their references to Articles 3.1(b) and 3.2 of the
SCM Agreement. Thus, Canada does not question the clarity of the Complainants' allegations that the
measures at issue are inconsistent with Articles 3.1(b) and 3.2 of the SCM Agreement. Rather,
Canada's concern relates to the lack of detail with which the Complainants' have chosen to describe
these allegations, and in particular, the statement made in both Panel Requests that the measures at
issue are inconsistent with Articles 3.1(b) and 3.2 of the SCM Agreement, because they are " subsidies
within the meaning of Article 1.1 of the SCM Agreement that are provided contingent upon the use of
domestic over imported goods".
29 According to Canada, this description of the Complainants' claims
is overly general and provides little, if any, valuable insight into the constituent elements of the
subsidies being challenged, as defined in Article 1.1 of the SCM Agreement. In Canada's view,
whenever a claim is made under Articles 3.1(b) an d 3.2 of the SCM Agreement, such information
must be found in a panel request in order for it to "explain succinctly how or why the measure at issue

25 Korea, Third Party Written Subm ission (DS412), para. 9, referring to Appellate Body Report,
Thailand – H-Beams, para. 97.
26 Korea, Third Party Written Submission (DS412), para. 9.
27 Mexico, Third Party Written Submissions (DS412 & DS426), paras. 5-15.
28 United States, Third Party Written Submissions (DS412 & DS426), paras. 23-24.
29 Japan, Panel Request, p. 3 (emphasis added); European Union, Panel Request, p. 3 (emphasis added).

is considered by the complaining Member to be violating the WTO obligation in question", 30 and for
it to thereby comply with the requirement in Article 6.2 of the DSU to provide a "brief summary of
the legal basis of the complaint sufficient to present the problem clearly".
18. Canada submits that the Complainants' Pane l Requests should have contained information
about the constituent elements of the alleged subsid ies at issue. Canada does not dispute the position
taken by the Complainants that Article 1.1 of th e SCM Agreement is a purely definitional provision,
upon which it is impossible to base an independent claim of violation of the SCM Agreement. Rather,
the essence of Canada's submission is that beca use the notion of subsid y is integral to the
establishment of the Complainants' claims under Arti cles 3.1(b) and 3.2 of the SCM Agreement, the
definition of a subsidy contained in Article 1.1 must form part of the legal basis of the respective
complaints, and therefore, its constituent elements must be clearly identified in the respective Panel
Requests in order to "present the problem clearly ". As Canada puts it: "… a Member cannot breach
its obligation in Article 3.1(b) unless it has provi ded a subsidy. Consequently, a Complaining
Member cannot provide the 'legal basis of the clai m' based on 'subsidies contingent […] upon the use
of domestic over imported goods' unless it identifies fro m Article 1.1(a) which form of subsidy has
been provided".31
19. In our view, Canada's interpretation of the scope of Members' obligations under Article 6.2 of
the DSU confuses the distinction between claims made in a panel request and the arguments that must
be made in support of those claims in subsequent submissions during the course of a proceeding.
20. It is well established that the requirement in Article 6.2 of the DSU to provide a "brief
summary of the legal basis of the complaint suffici ent to present the problem clearly" refers to the
description found in a panel request of the nature of a party's claims, not its arguments.32 A "claim" is
an allegation "that the respondent party has violated, or nullified or impaired the benefits arising from,
an identified provision of a particular agreement". 33 On the other hand, an "argument" comprises the
statements made in support of a claim to demons trate that a responding party's measure infringes an
identified treaty provision. These are "set out and progressively clarified in the first written
submissions, the rebuttal submissions and the first and second panel meetings with the parties".34
21. In the present instance, the Complainants allege that Canada has acted inconsistently with
Articles 3.1(b) and 3.2 of the SCM Agreement. We accept the proposition that, in order to establish a
breach of Articles 3.1(b) and 3.2 of the SCM Agreement, a complainant must first demonstrate that a
subsidy exists within the meaning of Article 1 of the SCM Agreement. However, we do not consider
this to mean that all elements of Article 1 need to be specifically identified and articulated in order to

30 Canada, Letter to the Panel of 14 February 2 012 (DS426), referring to Appellate Body Report,
European Communities – Selected Customs Matters , para. 130; and Appellate Body Report, China – Raw
Materials, para. 226.
31 Canada, First Written Submission (DS412), pa ra. 111; and Canada, Letter to the Panel of
14 February 2012 (DS426).
32 Appellate Body Report, Guatemala – Cement I , para. 72 ("the legal basis of the complaint" could
also be referred to as "the claims"); and Appellate Body Report, EC – Bananas III, paras. 141-143 ("Article 6.2
of the DSU requires that the claims, but not the arguments, must all be specified suffi ciently in the request for
the establishment of a panel in order to allow the defending party and any third parties to know the legal basis of
the complaint"). Similar statements can be found in Appellate Body Report, EC – Selected Customs Matters ,
para. 153; and Appellate Body Report, India – Patents (US) , para. 88; Appellate Body Report, Korea – Dairy,
para. 139; and Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes, para. 121.
33 Appellate Body Report, Korea – Dairy , para. 139. See also Panel Report, Egypt – Steel Rebar ,
para. 7.58.
34 Appellate Body Report, Korea – Dairy , para. 139. See also Panel Report, Egypt – Steel Rebar ,
para. 7.58.

"present the problem clearly". Article 1 of the SCM Agreement is a defin itional provision, which
implies that it cannot be the legal basis for a claim of violation of the SCM Agreement. Indeed, the
mere fact that a Member may provide subsidies that fall within the scope of Article 1 does not place
that Member in contravention of the SCM Agreement. The violation – if there be one – will emanate
from a breach of Article 3.1(b) or 3.2 of the SCM Agreement.
22. Moreover, in the same way that a breach of Articles 3.1(b) and 3.2 cannot be established
without demonstrating the existence of a subsidy, so too is it necessary to show, for example, that any
particular subsidy has been: (i) granted or maintain ed; (ii) contingent upon; (iii) the use of domestic
over imported goods. Thus, in terms of making out a case of inconsistency with Articles 3.1(b) and
3.2, establishing the existence of a subsidy within the meaning of Article 1 is only one of several
"requirements" or "conditions" that must be satisfied. In this light, Canada's line of argument, when
taken to its logical conclusion, implies that in orde r to comply with Article 6.2 of the DSU, a panel
request that contains a complaint made under Artic les 3.1(b) and 3.2 of the SCM Agreement must
provide an explanation about not only the type of subsidy at issue, but also the granting or
maintaining of that subsidy, the use of domestic over imported goods, and the notion of contingency.
However, as we see it, information about each of these elements – elements that are equally critical to
demonstrating a violation of Article 3.1(b) and 3.2 of the SCM Agreement – will be the precise
subject matter of the arguments that must be made in support of such a claim in subsequent
submissions to the panel.
23. In addition, we observe that the Complain ants' Panel Requests do contain contextual
information about the subsidies that are alleged to exist and which further clarifies the foundations of
their complaints. Each refers to the allegation that "prohibited subsidies" exist. Each describes the
nature of the alleged subsidy as involving "guaranteed, long-term pric ing for the output of renewable
generation facilities" effected through the FIT Progra mme as well as the FIT and microFIT contracts,
with the European Union additiona lly describing such pricing as "above-market". The government
entity involved in the provision of the alleged s ubsidies is identified as "the Canadian province of
Ontario", and the recipients of the alleged subsidi es can also easily be ascertained by virtue of the
reference to the individual FIT and microFIT contracts.
24. Furthermore, each of the Panel Requests identifi es the various laws, rules, contracts, forms,
documents and other descriptive materials said to constitute the measures. As we have already
mentioned, they are specifically described by each of the Complain ants in their Panel Requests as
"prohibited subsidies". Having been directed preci sely towards the measures, and by setting out the
legal basis of the complaint in terms of the clai ms that are being made about those measures, we
believe that the Panel Requests do present the proble m sufficiently clearly. Canada had the necessary
reference points to understand what Japan and the European Union will have to establish in order to
prevail in their claims, and to prepare itself for the detailed first written submissions from the
Complainants which will necessarily follow.
25. Thus, in the light of the above discussion, we cannot agree with Canada's arguments
concerning the lack of clarity in the Complainants ' Panel Requests, and in particular, the allegation
that they fail to provide a "brief summary of the legal basis of the complaint sufficient to present the
problem clearly". In our view, the
legal basis of the complaints made under Articles 3.1(b) and 3.2 of
the SCM Agreement is described with sufficient cl arity in the respective Panel Requests to "present
the problem clearly" in compliance with the standard s of Article 6.2 of the DSU. It enables the
responding Party to properly prepare for the case atte nding the first submissions of the complaining
Parties. We therefore dismiss Canada's requests for preliminary rulings.