CANADA – CERTAIN MEASURES AFFECTING THE RENEWABLE ENERGY GENERATION SECTOR
Document: Panel Report
Date: 19 December 2012
Document codes: WT/DS412/R; WT/DS426/R; WT/DS412/R; WT/DS426/R.; WT/DS412/R; WT/DS426/R
Complainant: Japan
Respondent: Canada
Third parties: Australia, Brazil, China, El Salvador, EU, Honduras, India, Saudi Arabia, South Korea, Mexico, Norway, Taiwan, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. XXIII:1  GATT 1994Art. 1.1, 3.1(b), 3.2  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

Reports of the Panels

Note by the Secretariat:

The Panels issue these Reports in the form of a single document constituting two separate Panel Reports:
 and Each Panel Report relates to one of the two complaints in these disputes. The
cover page, preliminary pages, Sections I through VII, Section IX and the Annexes are common to both Panel
Reports. The page header throughout the document bears two document symbols, and
, with the following exceptions: Section VIII on page JPN-139, which bears the document symbol
for and contains the Panel's conclusions and recommendations in the Panel Report ; and
Section VIII on page EU-140, which bears the document symbol for and contains the Panel's conclusions and
recommendations in the Panel Report

I. INTRODUCTION
A. C
OMPLAINTS OF JAPAN AND THE EUROPEAN UNION
1.1 On 13 September 2010, Japan requested consultati ons with Canada pursuant to Article 4 of
the Understanding on Rules and Procedures Governi ng the Settlement of Disputes (the "DSU"),
Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994"), Article 8 of
the Agreement on Trade-Related Investment Measur es (the "TRIMs Agreement"), and Articles 4.1
and 30 of the Agreement on Subsidies and C ountervailing Measures (the "SCM Agreement") 1. On
11 August 2011, the European Union requested cons ultations with Canada pursuant to the same,
above-mentioned provisions 2. In both complaints, the consu ltations concerned certain measures
relating to domestic content requirements in the feed-in tariff programme (the "FIT Programme"),
established by the Canadian Province of Ontario. These measures included the following: (i) the
Electricity Act of 1998 ; (ii) the Green Energy and Green Economy Act of 2009 ; (iii) the Electricity
Restructuring Act of 2004; (iv) the Ontario Regulation 578/05; (v) the Independent Electricity System
Operator (the "IESO") Market Manual; (vi) the IESO Market Rules; (vii) the FIT direction dated
24 September 2009 from the Deputy Premier and Minister of Energy and Infrastructure;
(viii) individual FIT and microFIT Contracts executed by the Ontario Power Authority (the "OPA");
(ix) the FIT Rules and microFIT Rules issued by the OPA; (x) the FIT and microFIT Contracts issued
by the OPA; (xi) the FIT Application Form and th e online microFIT Application issued by the OPA;
(xii) the FIT and microFIT Price Schedules issued by the OPA; (xiii) the FIT Programme
Interpretations of the Domestic Content Requirements; and (xiv) any amendments or extensions of the
foregoing, any replacement, renewal, implementing or related measures
3.
1.2 Consultations were held between Japan a nd Canada on 25 October 2010, and between the
European Union and Canada on 7 September 2011. These consultations failed to resolve the disputes.
1.3 Japan and the European Union each requ ested, respectively on 1 June 2011 and
9 January 2012, the establishment of a panel pursuant to Articles 4.7 and 6 of the DSU, Article XXIII
of the GATT 1994, Article 8 of the TRIMs Agreement, and Articles 4.4 and 30 of the
SCM Agreement4.
B. ESTABLISHMENT AND COMPOSITION OF THE PANELS
1.4 At its meetings on 20 July 20 11 and 20 January 2012, the Dispute Settlement Body (the
"DSB") established two Panels pursuant to, respec tively, Japan's request in document WT/DS412/5,
and the European Union's request in WT/DS426/5, in accordance with Article 6 of the DSU.
1.5 The terms of reference for the respective disputes are the following:
To examine, in the light of the relevant pr ovisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by Japan in document
WT/DS412/5 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.

1 WT/DS412/1.
2 WT/DS426/1 and WT/DS426/1/Add.1.
3 WT/DS412/1; WT/DS426/1 and WT/DS426/1/Add.1. Japan's request for consultations did not
expressly refer to the Ontario Regulation 578/05 , the IESO Market Manual and the IESO Market Rules.
However, these measures were included in Japan's request for the establishment of a panel (WT/DS412/5).
4 WT/DS412/5 and WT/DS426/5.

To examine, in the light of the relevant pr ovisions of the covered agreements cited by
the parties to the dispute, the matter refe rred to the DSB by the European Union in
document WT/DS426/5 and to make such findings as will assist the DSB in making
the recommendations or in giving the rulings provided for in those agreements.
1.6 On 26 September 2011, Japan requested the Director-General to determine the composition of
the Panel in WT/DS412, pursuant to Article 8.7 of the DSU. On 6 October 2011, the Director-General
composed the Panel as follows:
 Chairperson: Mr Thomas Cottier
 Members: Mr Alexander Erwin
 Mr Daniel Moulis

1.7 With respect to WT/DS426, following the agreem ent of the parties, the Panel was composed
with the same persons on 23 January 2012. Following c onsultations 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
5.
1.8 Australia, Brazil, China, El Salvador, Indi a, Korea, Mexico, Norway, the Kingdom of
Saudi Arabia, Chinese Taipei, and the United States reserved their rights to participate in the Panel
proceedings as third parties in both disputes. In addition, the European Union and Honduras reserved
their rights to participate as third parties with respect to WT/DS412, and Japan and Turkey reserved
their third party rights to participate in the Panel proceedings with respect to WT/DS4266.
1.9 The Panel met with the parties to the disputes on 27-28 March 2012 and 15-16 May 2012, and
with the third parties on 28 March 2012. At the request of the parties, the Panel's meetings with the
parties were open to the public. A portion of the Pa nel's meeting with the third parties was also open
to the public.
1.10 The Panel submitted its interim report to th e parties on 20 September 2012 and submitted its
final report to the parties on 16 November 2012.
C. ENHANCED THIRD-PARTY RIGHTS
1.11 At Canada's request, and as accepted by Japan a nd the European Union, enhanced third-party
rights were granted to all third parties. Third par ties in both disputes had the right to: (i) attend the
entirety of all substantive meetings between the parties and the Panel; and (ii) receive copies of the
parties' written submissions made in advance of the issuance of the interim report to the parties,
including first written submissions, written rebuttals, and responses to questions from the Panel at the
time that they were submitted to the Panel7.
D. AMICUS CURIAE BRIEFS
1.12 On 14 May 2012, the Panel received an unsolicited amicus curiae brief relating to both
disputes from the following organizations: Blue Gr een Canada; the Canadian Auto Workers (CAW);
the Communications, Energy and Paperworkers Uni on of Canada (CEP); the Canadian Federation of
Students (CFS); the Council of Canadians; the Canadian Union of Public Employees (CUPE); and the

5 For the reader's convenience, the Panels in WT/DS412 and WT/DS426 are herein collectively
referred to as the "Panel".
6 WT/DS412/6 and WT/DS426/6/Rev.1.
7 Working Procedures for the Panel, paras. 14 and 18.

Ontario Public Service Employees Union (OPSEU). On 15 May 2012, the Panel in WT/DS412
received a second unsolicited amicus curiae brief from the following organizations: the International
Institute for Sustainable Development (IISD); the Canadian Environmental Law Association (CELA);
and Ecojustice Canada.
1.13 During the second substantive meeting of th e Panel with the parties, Japan, the
European Union and Canada recalled that it is within the discretion of the Panel to accept or reject the
unsolicited amicus curiae briefs
8. Subsequently, and consistent with the approach taken by previous
panels9, the Panel informed the parties that it would take the briefs into account only to the extent the
parties decided to incorporate them into their own submissions. Canada informed the Panel that it had
no comments to add on this issue beyond what Cana da had already stated at the second substantive
meeting with the Panel, namely that it is within the discretion of the Panel to accept or reject the
unsolicited amicus curiae briefs. Japan and the European Unio n (the "complainants") informed the
Panel that they did not consider it necessary to incorporate any of the observations made in the amicus
curiae briefs. In the light of the parties' views, the Panel did not find it necessary to take the briefs into
account in its analysis of the claims and arguments made in these disputes.
E. PRELIMINARY RULING ON THE PANELS' TERMS OF REFERENCE
1.14 On 4 November 2011, Canada submitted to the Panel in WT/DS412 a request for a
preliminary ruling concerning the consistency of Japan's request for the establishment of a panel
(WT/DS412/5) with Article 6.2 of the DSU. In par ticular, Canada argued that the claims made under
the SCM Agreement described in Japan's request fo r the establishment of a panel failed to provide a
"brief summary of the legal basis" that is "su fficient to present the problem clearly", and should
therefore be struck out of th e Panel's terms of reference10. On 17 November 2011, Japan responded to
Canada's preliminary ruling request rejecting Ca nada's arguments. On 21 November 2011, the Panel
announced to the parties that, without prejudice to any views that the Panel may develop on Canada's
request during the course of the proceeding, it was not convinced of the merit of Canada's request at
that time. On 14 February 2012, Canada submitt ed to the Panel in WT/DS426 a request for a
preliminary ruling concerning the consistency of th e European Union's request for the establishment
of a panel (WT/DS426/5) with Article 6.2 of the DSU, on the basis of essentially the same arguments
used to justify its request for a preliminary ruling in WT/DS412 11. On 21 February 2012, the
European Union responded to Canada's request fo r a preliminary ruling. The Panel announced its
conclusions on the merits of Canada's requests for preliminary rulings at the opening session of the
first substantive meeting with the parties on 27 March 2012. The Panel subsequently issued its
preliminary rulings to the parties in written form on 11 May 2012. After consulting with the parties,
the Panel decided: (a) to circulate its preliminary ru lings to all Members; and (b) that the circulated
preliminary rulings would form an integral part of the final Panel Reports, subject to any revisions
necessary in the light of comments received from the parties during interim review. The Panel's
preliminary rulings were circulated on 25 May 2012 in documents WT/DS412/8 and WT/DS426/7.

8 Appellate Body Report, US – Shrimp, para. 108.
9 Panel Reports, US – COOL , para. 2.10; US – Tuna II (Mexico) , para. 7.2; Thailand – Cigarettes
Lumber IV, fn. 75.
10 Canada's request for a preliminary ruling (DS412 ), paras. 2 and 25; and first written submission
(DS412), paras. 102-113.
11 Canada's letter to the Panel of 14 February 2012 (DS426); and first written submission (DS426),
paras. 48-50.

II. FACTUAL ASPECTS
2.1 These disputes concern the domestic content requirements attached to the FIT and microFIT
Contracts, granted under the FIT Programme establish ed by the Canadian Province of Ontario, for
certain wind and solar photovoltaic ("PV") electricity generation projects. The complainants challenge
the WTO consistency of these specific measures:
(1) the FIT Programme, as evid enced by the following measures
12:
i. the Electricity Act of 1998 , as amended, including in particular Part II
(Independent Electricity System Operator), Part II.1 (Ontario Power Authority)
and Part II.2 (Management of Electricity Supply, Capacity and Demand) thereof,
including in particular Section 25.35 (Feed-in tariff program);

ii. an Act to enact the Green Energy Act of 2009 and to build a green economy, to
repeal the Energy Conservation Leadership Act of 2006 and the Energy
Efficiency Act and to amend other statutes (the " Green Energy and Green
Economy Act of 2009 "), including in particular Schedule B amending the
Electricity Act of 1998;

iii. an Act to amend the Electricity Act of 1998 and the Ontario Energy Board Act of
1998 and to make consequential ame ndments to other Acts (the " Electricity
Restructuring Act of 2004 "), including in particular Schedule A, Sections 29-32,
enacting Part II.1 of the Electricity Act of 1998 , and Sections 33-38, enacting
Part II.2 of the Electricity Act of 1998 , and Schedule B, Sections 17-18, enacting
Sections 78.3-78.4 of the Ontario Energy Board Act of 1998;

iv. the Ontario Regulation 578/05 made under the Ontario Energy Board Act of
1998 entitled "Prescribed Contracts Re Sections 78.3 and 78.4 of the Act";

v. the Independent Electricity System Operator ("IESO") Market Manual, including
in particular Part 5.5 (Physical Markets Settlement Statements);

vi. the IESO Market Rules, including in particular Chapter 7 (System Operations and
Physical Markets), Chapter 9 (Settlements and Billing) and Chapter 11
(Definitions);

vii. the FIT direction dated 24 Septembe r 2009, from George Smitherman, Deputy
Premier and Minister of Energy and Infrastructure, to Colin Andersen, Chief
Executive Officer, OPA, directing OPA to develop a FIT Program and include a
requirement that the applicant submit a plan for meeting the domestic (i.e.
Ontario) content goals in the FIT rules;

viii. all versions of the FIT Rules, and the mi croFIT Rules, issued by the OPA since
the inception of the FIT Programme;

ix. all versions of the FIT Contract, including General Terms and Conditions,
Exhibits, and Standard Definitions; and the microFIT Contract, including
Appendices, and the Conditional Offer of microFIT Contract, issued by the OPA
since the inception of the FIT Programme;

12 WT/DS412/5 and WT/DS426/5.

x. all versions of the FIT Application Fo rm, and online microFIT Application,
issued by the OPA since the inception of the FIT Programme;

xi. all versions of the FIT Price Schedule, and the microFIT Price Schedule, issued
by the OPA since the inception of the FIT Programme;

xii. all versions of the FIT Program Inte rpretations of the Domestic Content
Requirements, issued by the OPA since the inception of the FIT Programme;

 (2) the individual FIT Contracts for wind or solar PV sources, executed by the OPA since
the inception of the FIT Programme; and

 (3) the individual microFIT Contracts for solar PV source, executed by the OPA since
the inception of the FIT Programme.

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
A. C
OMPLAINANTS
1. Japan
3.1 Japan requests the Panel to find that:
(a) through the FIT Programme, as well as individually executed FIT and microFIT
Contracts for wind and solar PV projects, Canada grants and maintains prohibited
subsidies that are contingent upon th e use of domestic over imported goods, in
violation of Articles 3.1(b) and 3.2 of the SCM Agreement;
(b) the domestic content requirement of the FIT Programme, as well as individually
executed FIT and microFIT Contracts for wind and solar PV projects, accords less
favourable treatment to Japanese renewa ble energy generation equipment than
accorded to like products of Ontario orig in, in violation of Article III:4 of the
GATT 1994; and
(c) the FIT Programme, as well as individually executed FIT and microFIT Contracts for
wind and solar PV projects, constitute trade -related investment measures inconsistent
with the provisions of Article III of the GATT 1994, and are therefore in violation of
Article 2.1 of the TRIMs Agreement.
3.2 Japan requests that the Panel recommend that Canada:
(a) withdraw its allegedly prohibited subsidies without delay, as required by Article 4.7
of the SCM Agreement, by eliminating th e domestic content requirement of the FIT
Programme, as well as that of individually executed FIT and microFIT Contracts for
wind and solar PV projects; and
(b) bring the FIT Programme, as well as i ndividually executed FIT and microFIT
Contracts for wind and solar PV projects, into conformity with the GATT 1994 and
the TRIMs Agreement, as required by Article 19.1 of the DSU.

3.3 Japan also requests that the Panel reject Canada 's request for preliminary rulings with respect
to any alleged failure on Japan's part to comply with Article 6.2 of the DSU.
2. European Union
3.4 The European Union requests the Panel to find that:
(a) Canada violates Articles 3.1(b) and 3. 2 of the SCM Agreement since the FIT
Programme and its related contracts estab lished by the Government of Ontario 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, namely contingent upon
the use of equipment and components fo r renewable energy generation facilities
produced in Ontario over such equipment and components imported from other WTO
Members, including the European Union;
(b) Canada violates Article 2.1 of the TRIMs Agreement, in conjunction with
Paragraph 1(a) of its Annex, because the FIT Programme and its related contracts
established by the Government of Ontario are TRIMs that require the purchase or use
by enterprises of equipment and compone nts for renewable energy generation
facilities of Ontario origin or source; and
(c) Canada violates Article III:4 of the GATT 1994 because the FIT Programme and its
related contracts established by the Gove rnment of Ontario are TRIMs falling under
Paragraph 1(a) of the Annex to the TRIMs Agreement and, in any event, because they
impose domestic content requirements on wi nd and solar PV electricity generators
that affect the internal sale, purchase or use of renewable energy generation
equipment and components, according less favourable treatment to like products of
European Union origin.
3.5 The European Union requests that the Panel recommend that Canada:
(a) withdraw its allegedly prohibited subsidi es without delay (and, in no case, no more
than within 90 days), as required by Article 4.7 of the SCM Agreement; and
(b) bring the FIT Programme and its related cont racts into conformity with the covered
agreements as required by Article 19.1 of the DSU.
3.6 The European Union also requests that the Pa nel reject Canada's request for preliminary
rulings with respect to any alleged failure on the Eur opean Union's part to comply with Article 6.2 of
the DSU.
B. C
ANADA
3.7 Canada requests that the Panel reject the comp lainants' claims, finding instead that Canada
has not acted inconsistently with Article III:4 of the GATT 1994 and Article 2.1 of the
TRIMs Agreement. Canada also requests that the Pane l find, by means of a preliminary ruling, that it
does not have jurisdiction over the complainants ' claims under the SCM Agreement or, in the
alternative, that Canada has not acted incons istently with Articles 3.1(b) and 3.2 of the
SCM Agreement.

IV. ARGUMENTS OF THE PARTIES
4.1 The arguments of the parties, as set forth in the executive summaries of their submissions
provided to the Panel, are attached to these Reports as annexes (see List of Annexes, page vi).
V. ARGUMENTS OF THE THIRD PARTIES
5.1 The arguments of the third parties, as set forth in the executive summaries of their
submissions provided to the Panel, are attached to these Reports as annexes (see List of Annexes,
page vi)
13.
VI. INTERIM REVIEW
A. INTRODUCTION
6.1 The Interim Reports in these disputes were issued to the parties on 20 September 2012. The
parties submitted written requests for review of precise aspects of the Interim Reports on
4 October 2012. Written comments on the written requests were submitted by the parties on
17 October 2012. None of the parties requested an additional meeting with the Panel.
6.2 The Panel's response to issues of a substantive na ture raised by the parties in their requests
and comments on the Interim Reports is set out below following the organization of the reports
themselves, with the parties' requests for revi ew and comments addressed sequentially. Due to
changes made as a result of our review, the nu mbering of paragraphs and footnotes in the Final
Reports has changed from the Interim Reports. The te xt below refers to the paragraph and footnote
numbers in the Interim Reports, with the corres ponding paragraph or footnote numbers in the Final
Reports (if different) in parentheses for ease of reference.
6.3 In addition to the modifications made as a re sult of the interim review requests that are
discussed below, we have corrected a number of ty pographical errors and made other non-substantive
changes (including in relation to misdescriptions of facts and arguments identified by the parties)
throughout the Final Reports.
B. PARTIES' REQUESTS FOR CHANGES TO THE INTERIM REPORTS AND PANELS' EVALUATION
1. Paragraph 2.1

6.4 The European Union requests th at the Panel add a footnote the first time the "FIT
Programme" is cited in paragraph 2.1 to clarify that the references to the FIT Programme also include
the "microFIT Programme". Canada has not commented on this request.
6.5 The Panel has decided not to accommodate th e European Union's request. Paragraph 2.1
reflects the requests for establishment of a panel by Japan and by the European Union, and no
reference to a "microFIT Programme" was made. In addition, it is clear from paragraph 2.1 that FIT
and microFIT Contracts are granted under the FIT Programme.

13 Australia, Brazil, China, El Salvador, the Euro pean Union (in WT/DS412), Japan (in WT/DS426),
Korea, Mexico, Norway, the Kingdom of Saudi Arabia , and the United States provided written submissions
and/or made oral statements at the meeting of the Panel with the third parties.

2. Paragraph 7.8

6.6 Japan requests that the Panel set forth in paragr aph 7.8 its preliminary rulings as circulated on
25 May 2012 in documents WT/DS412/8 and WT/DS426/ 7, in order to enhance the clarity of those
preliminary rulings. Canada has not commented on Japan's request.
6.7 In our view, it is not necessary to incorporate th e body of our preliminary rulings in the Final
Reports. Paragraph 7.8 already includes a referenc e to documents WT/DS412/8 and WT/DS426/7, in
which the preliminary rulings were set out in full and circulated. However, for the sake of clarity, we
have added a sentence to paragraph 7.8 summarizing our conclusions from the preliminary rulings.
3. Paragraphs 7.9, 7.64, 7.124, 7.165, 7.166, 7.216 and 7.322-7.324

6.8 Japan and the European Union request that the Pa nel delete the term "small-scale" in the first
sentence of paragraph 7.9, and in paragraphs 7. 64, 7.124, 7.165, 7.166, 7.216, and 7.322-7.324,
because they argue that the FIT Programme and the "Minimum Required Domestic Content Level" do
not apply solely to "small-scale" solar PV and wind facilities. The complainants recall that there is no
maximum capacity for wind projects, and state that it would be inappropriate to qualify solar PV
projects as "small-scale", since the maximum capaci ty for these projects is 10 MW. Canada has not
commented on this request.
6.9 We have decided to accept the complainants' requests and have accordingly made a number
of adjustments to the relevant paragraphs.
4. Paragraphs 7.11-7.13 and 7.32

6.10 Japan requests the Panel to revise the facts st ated in paragraphs 7.11-7.13 and 7.32. Japan
submits that the adjectives "large", "vast" and "m assive, respectively in the second, sixth and seventh
sentences of paragraph 7.11 should be struck fro m the Reports, as they are highly subjective, not
supported in the record, and do not accurately describe the type or size of a system or infrastructure
required to maintain electricity systems. In addition, Japan requests a series of changes to
paragraphs 7.11-7.13 and 7.32, as it is clear that not all electricity consumers obtain electricity
through the systems described by the Panel. Cana da submits that these requests should be rejected
because the inclusion of the relevant adjectives to describe aspects of electricity systems is amply
supported by the record
14.
6.11 The Panel has reflected on the terminology used in paragraphs 7.11-7.13 and 7.32 and, where
appropriate, has made some adjustments in the light of Japan's requests and Canada's comments.
5. Paragraph 7.12

6.12 The European Union requests the Panel to add a footnote to the second sentence of
paragraph 7.12, mentioning the fact that, in the specific case of Ontario, the IESO Market Rules
foresee the possibility of entering into bilateral elec tricity supply contracts, under certain conditions
(Chapter 8 of the Market Rules). Canada consider s that the European Uni on's request is unnecessary,
noting that the Panel's statement is qualified by th e word "generally" and, as such, means that it was
clearly not intended to be comprehensive. Moreover, Canada submits that while the European Union's
understanding of the IESO Market Rules is correct, there is no evidence of any such contracts in the
record.

14 Canada refers to the European Union's requests. However, we understand that Canada intended to
refer to Japan's requests.

6.13 The Panel has decided to decline the European Union's request. As noted by Canada, the
second sentence in paragraph 7.12 is qualified by th e term "generally". Thus, this sentence is not
meant to include the possibility referred to in Chapter 8 of the IESO Market Rules.
6. Paragraph 7.21

6.14 Canada requests that the Panel change the wo rd "recognized" to "establish" in the third
sentence of paragraph 7.21. The European Union subm its that this request should be rejected, arguing
that Canada has not justified its request on any evidence available to th e Panel. Japan has not
commented on Canada's request. The Panel has decided not to accommodate Canada's request.
Paragraph 7.21 cites Ontario's Long-Term Energy Plan, Exhibit CDA-6, p. 5, and the same term
found therein ("recognized") has been used by the Panel.
7. Paragraph 7.22

6.15 Japan requests that the Panel revise paragraph 7.22 to clarify the facts stated therein, and to
add a sentence at the end indicating that the OEB wa s designated the regulator of the new electricity
market. Canada has not commented on Japan's requ est. The Panel has decided to accommodate most
of Japan's requests and has made the adjustments so ught, albeit not in the precise manner proposed by
Japan.
8. Paragraphs 7.23, 7.24, and 7.285-7.292

6.16 The European Union alleges that the descripti ons in paragraphs 7.23, 7.24, and 7.285-7.292
do not reflect uncontested facts, in particular regarding the question whether "Ontario's competitive
wholesale electricity market" started and ended in 20 02. Were the Panel to consider these paragraphs
to set out its factual findings on the nature and ope ration of Ontario's wholesale market before and
after November 2002, the European Union requests that the Panel identify the specific qualitative
changes which took place at that specific moment in time.
6.17 Canada submits that the Panel should reject th e European Union's request. Canada notes that
throughout paragraphs 7.23, 7.24, and 7.285-7.292, the Panel has carefully relied on evidence in the
record to support its factual findings. Moreover, Cana da recalls that the Panel has already set out the
specific qualitative changes that took place after N ovember 2002 in paragra phs 7.285 to 7.292, and
that the European Union has apparently agreed th at the current IESO market mechanism may not be
the classical competitive market where supply and de mand meet, as described in paragraph 7.294 of
the Interim Reports.
6.18 Paragraphs 7.23 and 7. 24 provide a brief description of Ontario's experience with the
competitive wholesale market that was opened in 2002. In our view, none of what is stated in these
paragraphs has been contested by the parties. In th is regard, we note that the European Union has not
denied that it has asserted that the market which operated in Ontario in 2002 was competitive. Neither
has the European Union contested that the operati on of this market was put to an end by the
Government of Ontario following a period of relativ ely high prices. The European Union has also not
disputed that the Electricity Restructuring Act of 2004 was a response to the failed 2002 market
opening experience. Thus, we see no reason to make any modifications to paragraphs 7.23 and 7.24.
6.19 Paragraphs 7.285-7.291 set out a more detailed description of the events that took place
around Ontario's 2002 competitive market opening experience, based on a number of pieces of
evidence that are referenced in this passage. Para graph 7.292 articulates the Panel's conclusion that
the evidence demonstrates that th e competitive market opening experience failed to attract sufficient
investment in electricity production into Ontario. In addition, we note that paragraphs 7.293-7.298

describe and evaluate the nature of the IESO-admin istered wholesale electricity market that replaced
the 2002 competitive market on the basis of the parties' arguments and submitted evidence. Here the
Panel concludes that the IESO-a dministered wholesale electricity market produces the HOEP, which
the Panel considers cannot be used as an appropria te benchmark for what the price of electricity
would be in Ontario in a competitive wholesale electricity market. In our view, the factual
descriptions and findings made in these passages are sufficiently clear and referenced to the relevant
pieces of evidence. Therefore, again, we see no reason to accommodate the European Union's
requested changes to paragraphs 7.285-7.292.
9. Paragraph 7.24

6.20 Japan requests that the Panel revise the second sente nce of paragraph 7.24 in order to clarify
the description of the reforms introduced by the Electricity Restructuring Act of 2004 . In particular,
Japan requests that the terms "responsibility for" be replaced with "engaging in". Canada submits that
the Panel should reject Japan's request. The Pane l's description relies upon and is consistent with
Section 25.2(1) of the Electricity Act of 1998, as amended by the Electricity Restructuring Act of
2004. According to Canada, this Section demonstrates that the OPA does more than just "engage in"
overall long-term system planning.
6.21 We consider that the wording of the second sente nce of paragraph 7.24 is appropriate in the
light of the facts that are before us, as evidenced by the record. Thus, we have declined Japan's
requested modifications.
10. Paragraph 7.25

6.22 Japan requests that the second sentence of paragraph 7.25 be struck from the Reports, because
it is vague and not supported by the record before the Panel. Canada submits that the Panel should
reject Japan's request. Canada points out that Japan does not state which particular aspect of this
sentence is supposedly "vague and not supported by the record". In any case, Canada submits that
each aspect of the second sentence of paragraph 7.25 is specific and amply supported by the record.
6.23 Paragraph 7.25 follows the description in paragraphs 7.21-7.24 of the essentially government-
owned and managed electricity system that ex isted in Ontario from 1906 to 2002 and Ontario's
experience with a liberalized wholesale market in 2002. Paragraph 7.25 is an introduction to
section VII.A.4(c)(iii) of the Panel's findings which describes Ontario's current "hybrid" system and
must be read in the light of these preceding paragraphs. It is intended to emphasize the fact that
Ontario's electricity system continues today to be characterized by a significant degree of government
involvement. The Government of Ontario's role in generation, transmission, distribution and
regulation is described in the paragraphs that follow paragraph 7.25. Thus, we do not find
paragraph 7.25 vague and unsupported by the record of facts. We therefore have declined Japan's
requested modifications.
11. Paragraph 7.28

6.24 Canada suggests that the Panel amend the second se ntence of paragraph 7.28 in order for it to
read as follows: "Of these, the IPPs, which genera te around 40% of Ontario's electricity supply,
receive prices … including: NUG contracts; contra cts with Bruce Power; the Clean Energy Supply
("CES") contracts for natural gas …". Neither Jap an nor the European Un ion has commented on
Canada's request.
6.25
 As we understand it, Canada asks the Panel to modify paragraph 7.28 in such a way that
would lead it to explain that the prices for electri city produced by IPPs are set under OPA initiatives

and contracts which include NUG contracts and cont racts with Bruce Power. However, Canada has
not explained how the prices for IPPs are set under NUG contracts or contacts with Bruce Power.
Moreover, Canada has not pointed to any factual so urce to support its requested change. As such, we
have declined Canada's requested modifications.
12. Paragraphs 7.29 and 7.202

6.26 The European Union requests the Panel to in clude footnotes in paragraphs 7.29 and 7.202
recording the fact that the European Union has argued that the alleged 11% rate of return on equity is
an abstract construct that does not correspond to th e actual rates of return of individual projects.
Moreover, the European Union requests that the Pane l modify paragraph 7.202 to clarify that whether
the FIT Programme is construed in such a way as to cover generation costs plus a reasonable rate of
return on investment is a contested issue.
6.27 Canada objects to the European Union's request s, recalling that the relevant passage in the
Interim Reports uses language that is almost identical to that found in the exhibits upon which it
relies. In addition, Canada notes that paragraph 7. 29 is contained in the Panel's factual background
section and not in its summary of the parties' ar guments. Moreover, in Canada's view, the specific
argument the European Union refers to does not a ddress whether the rate of return was 11%. Rather,
the European Union seems to be instead raising ar guments about whether a particular generator can
actually achieve such a return on equity. Finally, Canada submits th at the Interim Reports adequately
summarize the European Union's argument that the 11% r a t e o f r e t u r n o n e q u i t y i s a n a b s t r a c t
construct in paragraph 7.258, and therefore, according to Canada, there is no need to add the footnotes
requested by the European Union.
6.28 We have modified paragraph 7.29 to more ac curately reflect the facts surrounding the 11%
rate of return used by the OPA to determine the FIT prices. However, we have declined the
European Union's other requests because, as Canada notes, the factual assertion made in the sentence
the European Union submits must be changed is b ased on record evidence cited in footnote 372 (now
footnote 392) found in paragraph 7.202. This info rmation explicitly states that "prices in the [FIT]
Price Schedule are intended to cover development cost s plus a reasonable rate of return for Projects
meeting certain assumptions relating to cost and e fficiency". The language used in paragraph 7.202
repeats this text almost verbatim. On the other hand, we have decided to add a reference to the
European Union's arguments concerning the allegedly "a bstract" nature of the 11% rate of return used
to determine the FIT Price Schedule in paragraph 7.325 of the Reports. We have also decided to add a
reference to Exhibit CDA-46, slide 30, in foot note 374 (now footnote 394). This exhibit clearly
discloses that an after tax return on equity rate of 11% was included in the Discounted Cash Flow
model used to determine the FIT Price Schedule.
13. Paragraph 7.30

6.29 The European Union requests th at the abbreviation "PV" be struck from the second sentence
of paragraph 7.30. In addition, the European ask s the Panel to add the relevant figures concerning
aboriginal and community projects, in order for pa ragraph 7.30 to be entirely accurate as regards FIT
prices. Canada has not commented on this request. The Panel has deleted "PV" from paragraph 7.30.
However, we see no need to add any information about Aboriginal and Community Projects in this
paragraph, as this information is already set out in paragraph 7.202.
14. Paragraph 7.31

6.30 The European Union submits that the third sen tence in paragraph 7.31 should start with
"Canada has not provided precise prices for these cont racts", instead of "[w]hile precise prices for

these contracts are not publicly available", given that the information exists and is available to the
Canadian authorities. The European Union asserts that , despite several questions asked by the Panel,
Canada has failed to provide the relevant informat ion. Alternatively, the European Union asks the
Panel to reflect in a footnote the fact that Canada failed to provide those precise prices in the course of
these proceedings, even upon the Panel's request.
6.31 Canada asks the Panel to reject the European Union's request. Canada notes that precise rates
for electricity are subject to the privacy and commerc ial interests of the counter-party to the relevant
NUG contract. However, Canada has provided the Pane l with an average NUG contract rate, and the
European Union does not explain why this average is insufficient evidence of the rates NUGs earn for
their sale of electricity to the OEFC.
6.32 The Panel has reflected on the phrasing of the th ird sentence in paragraph 7.31, and considers
it appropriate in the light of the record. Thus, we have declined the European Union's request.
15. Paragraph 7.46

6.33 Canada asserts that while it is true that certain consumers of electricity can vary their
electricity consumption, this is the case for only a very small number of consumers. Thus, Canada
asks the Panel to add the following after the first sen tence in paragraph 7.46: "The consumers that can
easily vary their electricity consumption are very small in number".
6.34 The complainants ask the Panel to reject Ca nada's request. Japan disagrees with Canada's
comments that only a very small number of consumer s can vary their electricity consumption. Japan
refers to Ontario's Long-Term Energy Plan where it is anticipated that all types of consumers can vary
their consumption through innovative conser vation or demand response-type programmes
15. The
European Union considers that the reference to "very small number" is vague. Finally, the
complainants point out that Canada has not jus tified its requests on any evidence available to the
Panel.
6.35 We note that Canada does not challenge the accura cy of what is described in paragraph 7.46,
but rather asks for the factual description to be el aborated so as to provide more detail about the
alleged nature of the consumers of electricity in Ontario. We see no need to make such a change, and
have therefore declined Canada's request.
16. Paragraph 7.50

6.36 Canada asks the Panel to replace the word "most" with "almost all" in the fourth sentence of
paragraph 7.50 for greater accuracy. The complainan ts point out that Canada has not justified its
request on any evidence available to the Panel, and ask the Panel to reject Canada's request. While we
recognize the qualitative difference between using the words "most" and "almost all", we do not think
that the choice of these words in the context of paragraph 7.50 would have any bearing on the
relevance of the description of the IESO stack system that is described in this part of the Reports.
Moreover, we note that Canada has not justified its request on the basis of evidence from the record of
these proceedings. Thus, we have declined to make the requested modification to paragraph 7.50.

15 Government of Ontario, "Ontario's Long-Term Energy Plan", 2010, ("Ontario's Long-Term Energy
Plan"), Exhibit CDA-6, p. 40.

17. Paragraph 7.54

6.37 Japan asks the Panel to delete the words "market rate" from the first sentence of
paragraph 7.54, in order to conform with the la nguage used in paragra ph 7.53. Canada has not
commented on Japan's request. We see no need to ma ke the requested change given that the words
"market rate" are immediately followed by "(i.e. MCP/HOEP)". We have therefore declined Japan's
request.
18. Paragraph 7.55

6.38 Canada suggests that the Panel replace the terms "a charge to generators" with "a credit to
consumers" in the second sentence of paragraph 7.55 because, according to Canada, the GA is always
either a charge or payment to the consumer depe nding on fluctuations in the HOEP. Canada submits
that generators will always receive their contract ed or regulated rates – or in the instance of
unregulated OPG assets, the HOEP – regardless of HOEP/GA fluctuations. Finally, Canada notes that
Exhibit JPN-1, which is referenced at the end of the second sentence, does not use such a phrase.
6.39 Japan submits that Canada provides no support in the record for its assertion, and that the
Panel would be justified in using either phrase beca use the GA is both a charge to generators and a
credit to consumers. Japan notes that where the OP A contract is a contract for differences – e.g.
contracts for gas-fired facilities – and the contract ed price is less than HOEP, the generator is
"charged" the difference, thus reducing the GA and r esulting in a credit to consumers. Were the Panel
to accept Canada's proposed modification, Japan requ ests that the Panel cite evidence from the record
to support such modification. The European Union has not commented on Canada's request.
6.40 We have decided to modify paragraph 7.55 to re flect the fact that, as Canada and Japan have
highlighted, the GA can be both a charge to genera tors and a credit to consumers, and vice versa,
depending upon the level of the HOEP.
19. Paragraph 7.56

6.41 The European Union requests th e Panel to clarify that the GA is not collected from all
consumers according to the same methodology, cont rary to what the European Union asserts is
suggested by the first sentence of paragraph 7.56. Canada submits that the European Union's request
is unnecessary, and argues that the Panel's stat ement is true as the GA is allocated to all consumers in
proportion with the electricity they consume. Nevertheless, Canada proposes language that it
considers could be inserted before the last sentence in paragraph 7.56 to address the European Union's
concern.
6.42 The Panel has decided to accommodate the Eu ropean Union's request and has made the
appropriate adjustments on the basis of the language proposed by Canada.
20. Paragraph 7.57

6.43 Canada asks the Panel to modify the first sen tence of paragraph 7.57, with a view to
increasing accuracy, in order for it to read as follo ws: "Prices paid by retail consumers are generally
determined by adding to the wholesale price (i.e . the total of MCP/HOEP), the GA, other fees and
charges, plus an additional distribution charge to cover the cost of delivering electricity to consumer".
6.44 Japan asks the Panel to reject Canada's request. Japan notes that the wholesale price is
comprised of not only the MCP/HOEP but also GA and other fees and charges. Japan also points out

that Canada fails to explain why it would be necessa ry for the Panel to single out distribution charges
in the manner suggested by Canada.
6.45 The Panel has modified paragraph 7.57 to clarify the first sentence.
21. Paragraph 7.70

6.46 Japan requests that the Panel provide an explan ation in paragraph 7.70 of its reasons to
conclude that the TRIMs Agreement is the WTO agre ement that deals most directly, specifically and
in detail with the FIT Programme. In addition, Japan requests that the Panel provide its reasons for
rejecting the complainants' arguments that the claim under the SCM Agreement should be examined
first in the Panel's order of analysis of thei r complaints. Canada has not commented on Japan's
request.
6.47 In response to Japan's requests, we note that paragraph 7.70 already sets out: (i) that the
complainants assert (and Canada has not contested) that the challenged measures are TRIMs; and
(ii) that, in the Panel's view, this suggests that the TRIMs Agreement deals most directly, specifically
and in detail, with the challenged measures. The Panel therefore considers that its reasons for deciding
to begin its evaluation of the complainants' clai ms with those made under the TRIMs Agreement (as
opposed to those made under the SCM Agreement) ar e sufficiently clear. Thus, we have declined
Japan's requested modifications.
22. Paragraph 7.73

6.48 Japan requests that the Panel insert the phrase "before addressing its claims under the
TRIMs Agreement" after "Japan also argues" at th e beginning of the first sentence of paragraph 7.73,
in order to clarify that Japan considers its cl aim under the GATT 1994 to be the primary claim when
compared to Japan's claim under th e TRIMs Agreement. Japan also re quests that the terms "internal"
and "sale" should be set off separately in quotation marks to accurately reflect Japan's arguments.
Canada has not commented on Japan's request.
6.49 We have summarized the parties' arguments fo llowing the order of analysis adopted in the
Reports. Therefore we do not consider it necessary to insert the phrase requested by Japan. Nothing in
paragraph 7.73 suggests that Japan's claim unde r the GATT 1994 was presented as a subsidiary claim
to the one made under the TRIMs Agreement. Furthe rmore, in our view, the insertion of the language
Japan has requested be added to paragraph 7.73 would not address the relationship between Japan's
claims under the GATT 1994 and the TRIMs Agreement. As to Japan's second requested change, the
Panel has made the appropriate adjustment.
23. Paragraph 7.78

6.50 The European Union requests that the Pa nel insert the phrase "in conjunction with
Paragraph 1(a) of its Annex" afte r "Article 2.1 of the TRIMs Agreement", and make a minor change
to the wording in paragraph 7.78, in order to better reflect the European Union's claims, as
summarized in paragraph 3.4 of the Interi m Reports. Canada has not commented on the
European Union's request.
6.51 The Panel has made an adjustment to para graph 7.78, albeit not in the precise manner
proposed by the European Union.

24. Paragraph 7.120

6.52 The European Union asks the Panel to insert a series of sentences into paragraph 7.120 in
order to better reflect the European Union's argume nts. Canada considers that the European Union's
request is unnecessary, as the Interim Reports accura tely record the European Union's submissions.
Were the Panel to accept the European Union's requ ested additions, Canada asks that the Panel also
address Canada's argument that the European Union's interpretation is inconsistent with the texts of
the TRIMs Agreement and Article XI:2 of the GATT 1994.
6.53 We have modified the wording of paragraph 7. 120 (and consequently also paragraph 7.80) in
order to more accurately reflect the European Union's argument, albeit not in the precise manner
proposed by the European Union. Given that we have rejected the European Union's argument, we do
not find it necessary to address Canada's argument re lating to Article XI:2 of the GATT 1994 in order
to resolve the disputes. We have therefore made no change to paragraph 7.120 in response to Canada's
comment and request.
25. Paragraph 7.124

6.54 Canada agrees with the Pane l's conclusion that the "Minimum Required Domestic Content
Level" is a "requirement[] governing" the procurement of electricity for purposes of Article III:8(a) of
the GATT 1994. Canada requests that the Panel also conclude that Section 25.35 of the Electricity Act
of 1998 , the Ministerial Direction and the FIT and microFIT Rules and Contracts are laws and
requirements that govern the procurement of electricity for the purposes of Article III:8(a).
6.55 The European Union does not consider Canada's request appropriate since this section of the
Interim Reports refers to the Pa nel's understanding of the matter. The European Union observes that
Canada's arguments are well reflecte d in paragraph 7.88 of the Interim Reports and, thus, there is no
need for the Panel to make a reference to those arguments therein.
6.56 As noted by the European Union, Canada's ar guments relating to this matter are summarized
in paragraph 7.88 of the Interim Reports. Moreover, paragraph 7.124, and our findings in general on
this point, are focused only on the question whether the "Minimum Required Domestic Content
Level" is a "requirement[]" for purposes of Article III:8(a) of the GATT 1994. Thus, we see no need
to make the requested changes.
26. Paragraph 7.125

6.57 The European Union requests (i) some minor cha nges to the wording of the fifth sentence of
paragraph 7.125 and (ii) that the Panel insert an additional sentence at the end in order to better reflect
the European Union's argument. Canada does not consider these amendments necessary, because the
Interim Reports accurately record the European Union's arguments. In case the Panel accepts the
European Union's requested modifications, Canada requests that the Panel also address Canada's
argument that the European Union's interpretation is inconsistent with the scope of the Agreement on
Government Procurement.
6.58 The Panel has decided to partly accommodate th e European Union's request and has made the
minor adjustments sought to the wording of th e fifth sentence of paragraph 7.125. As the
European Union's argument was already accurate ly described in the second, third and fourth
sentences, the Panel has decided not to in sert the additional sentence proposed by the
European Union. With respect to Canada's comment s and request, we recall that in the subsequent
paragraphs we have explained our difficulty in accepting the Eur opean Union's interpretation and
stated our conclusion that the "Minimum Require d Domestic Content Leve l" should be properly

characterized as one of the "requirements governing" the alleged procurement of electricity for the
purpose of Article III:8(a) of the GATT 1994. Thus , it is not necessary for us to address Canada's
argument relating to the Agreement on Government Procurement in order to resolve the disputes
before us. We have made no change to this paragraph in response to Canada's comments and request.
27. Paragraph 7.134

6.59 Japan requests that the Panel explain why the fact that the GATT panel report in US – Sonar
Mapping was not adopted diminishes the relevance of that GATT panel's findings, in the light of the
Appellate Body's understanding in Japan – Alcoholic Beverages II , that "a panel could nevertheless
find useful guidance in the reasoning of an unadopted panel report that it considered to be relevant"
16.
Japan also requests the Panel to explain the particul ar facts of this case that have led the Panel to
conclude that the reasoning of the unadopted GATT panel report in US – Sonar Mapping is not
relevant.
6.60 Canada does not consider that the Reports need to be supplemented in response to Japan's
request. Canada recalls that the Appellate Body in Japan – Alcoholic Beverages II simply stated that
the reasoning of an unadopted panel re port could be useful if it was relevant. Canada stresses that the
Panel in these disputes extensively explained why the GATT panel report in US – Sonar Mapping did
not provide relevant guidance for these disputes.
6.61 Paragraph 7.134 sets out a number of features of the facts and law at issue in US – Sonar
Mapping which, in our view, significantly diminish its relevance in these disputes. Therefore, we
consider this paragraph to sufficiently explain wh y we were not persuaded by Japan's references to
this GATT panel. Moreover, in the last sentence, we have simply noted "that the GATT panel report
was not adopted". As this last sentence is not strictly necessary to our reasoning, we have deleted it.
28. Paragraph 7.138

6.62 Japan requests the Panel to revise this paragr aph, and proposes a series of changes. Japan
explains that its argument relating to the inte rpretation of the terms "governmental purposes" in
Article III:8(a) of the GATT 1994 does not take i ssue with whether the meaning of "governmental
purposes" is broad or narrow. Thus , Japan considers that it is highly misleading to simply qualify
Japan's arguments as the narrowest compared to the other parties' arguments. Canada has not
commented on Japan's request.
6.63 The Panel has decided not to accommodate Japa n's request. We have carefully reviewed
Japan's arguments and, in particular, its view that "a Vienna Convention analysis of the term 'for
governmental purposes' suggests that it means for government use, consumption, or benefit , where
again Japan uses the term 'benefit' to refer to that of using the product allegedly procured" 17. Based on
this statement, we do not believe it is inaccurate to characterize Japan's interpretation of the
expression "governmental purposes" as the "narrowest me aning", when compared to the other parties'
interpretations.
29. Paragraphs 7.139 and 7.140

6.64 The European Union understands that the Pane l's statements with regards to the terms
"governmental purposes" refer to the English ve rsion of the GATT 1994, since the Panel has not
specifically addressed the meaning of the terms used in the Spanish and French versions, which in the

16 Appellate Body Report, Japan – Alcoholic Beverages II, p. 15.
17 Japan's opening statement at the second meeting of the Panel, para. 33. (footnote omitted)

European Union's view differ from the English vers ion. Thus, the European Union requests that the
Panel modify these paragraphs to remove the refere nce that the ordinary meaning of "governmental
purposes" is "relatively broad" or to clarify that the Panel's understanding refers only to the English
version of the GATT 1994.
6.65 Canada does not consider the European Union' s request appropriate at this stage of the
proceedings, since the European Union is asking th e Panel to reverse its view that the ordinary
meaning of "governmental purposes" is relatively br oad. Canada notes that there is nothing in the
Interim Reports that confines the Panel's statem ent on the ordinary meaning of "governmental
purposes" to the English version of the GATT 1994.
6.66 We have adjusted the first sentence of paragra ph 7.139 to clarify that our understanding is not
limited to the English language version of the GATT 1994.
30. Paragraph 7.149

6.67 Canada submits that Hydro One and LDCs are intended to make returns from the
transmission and distribution assets, as explained in Exhibit CDA-64. Thus, Canada requests that the
Panel amend the fifth sentence of paragraph 7.149 by replacing the term "activities" with "assets".
6.68 Japan does not agree with Canada's request. Japan states that, notwithstanding Canada's
assertion, Exhibit CDA-64 does not explain that the returns made are from transmission and
distribution assets owned by Hydro One and LDCs, ra ther than their transmission and distribution
activities. Moreover, Japan argues that Hydro One a nd LDCs are intended to make profits from all of
their regulated activities, and not just from transmis sion and distribution. For example, Japan explains
that any party has the right to c onnect to the system if that part y meets all required legal and other
standards. Hydro One and the LDCs respectivel y conduct the System Impact Assessments and
Connection Impact Assessments, receiving payments from generators, including FIT generators
18.
6.69 The European Union considers that the Panel should reject Canada's request. First, it is
unclear what the relevance of the distinction betwee n "activities" and "assets" is in the present case.
Pursuant to the European Union, it is undisputed that Hydro One and the LDCs are engaged in the
transmission and distribution of electricity as their principal activity or business, and that they obtain
their returns out of the transmission and distribution of electricity in Ontario. Second, the language
suggested by Canada would appear to indicate that Hydro One and the LDCs do not generate their
revenue from their operations or business but mere ly from their assets, e.g. such as renting their
premises or infrastructure, which is clearly not the case.
6.70 The Panel has reflected on the terminology used in paragraph 7.149 and, where it considers
appropriate, has made some adjustments in the light of the interim review requests and comments.
31. Paragraphs 7.163 and 7.166

6.71 Japan recalls that it made two distinct arguments to establish that the "Minimum Required
Domestic Content Level" is inconsistent w ith Canada's national treatment obligation under

18 Japan cites the following Exhibits: Transmission-connected Generators, Hydro One website,
("Transmission-connected Generators"), Exhibit JPN-39; Transmission System Code, Ontario Energy Board,
10 June 2010, ("Transmission System Code"), Exhibit JPN-69, Section 4.3.3; Distribution System Code,
Ontario Energy Board, 1 October 2011, ("Distribution System Code"), Exhibit JPN-70, Section 6.2.11; and
Ontario Power Authority, Feed-in Tariff Contract, Version 1.5.1, 15 July 2011, ("FIT Contract"), Exhibit JPN-
127, Article 2.4(b)(iv).

Article III:4 of the GATT 1994. However, Japan notes that the Panel's evaluation of Japan's claim has
only addressed one of those arguments. Japan asks that the Panel address Japan's other argument and
that it do so by undertaking a separate analysis of Article III:4 of the GATT 1994. Japan considers
that this separate analysis is necessary in orde r for the Panel to discharge its responsibilities under
Articles 3 and 11 of the DSU. Canada has not commented on Japan's request.
6.72 Paragraph 7.163 sets out our conclusions on the extent to which the "Minimum Required
Domestic Content Level" requires the purchase or u se of products of Canadian origin or from a
Canadian source, as part of our analysis of whet her the challenged measures fall within the scope of
Paragraph 1(a) of the Illustrative List in the Anne x to the TRIMs Agreement. On the basis of these
and other conclusions (including those made in pa ragraph 7.166), we have found that the challenged
measures are TRIMs falling within the scope of Paragra ph 1(a) of the Illustrative List, and that in the
light of Article 2.2 of the TRIMs Agreement and the chapeau to Paragraph 1(a) of the Illustrative List,
the challenged measures are inconsistent with both Article 2.1 of the TRIMs Agreement and
Article III:4 of the GATT 1994. Having made this finding, we do not believe it is necessary for the
purpose of resolving the disputes before us to al so address Japan's other argument and perform an
entirely separate and stand-alone analysis of Japan's claim under Article III:4 of the GATT 1994.
Thus, we have declined Japan's request.
32. Paragraph 7.165

6.73 The European Union requests that the Panel st art the third sentence in paragraph 7.165 with
the words "According to Canada". Canada states that this request should be rejected, as the Panel's
statement that the European Union seeks to change is a finding of fact that is amply supported by the
record.
6.74 The Panel has decided not to accommodate th e European Union's request. The relevant
sentence reflects our understanding of the facts and, as summarized in paragraph 7.68, it is properly
supported by the evidence submitted in these disputes.
33. Paragraph 7.174

6.75 Japan requests that the language in the second sentence of this paragraph be changed to
clarify that the submission made by Japan that is described in this sentence is not a conditional one
but rather an argument that is true in all cases. To support this request, Japan asserts that the Appellate
Body made clear in US – Large Civil Aircraft (Second Complaint) that a transaction may be covered
by multiple subparagraphs of Article 1.1(a)(1). Canada asks the Panel to reject Japan's request,
arguing that Japan is incorrect to argue that the Appellate Body's ruling that Japan relies upon is "true
in all cases". According to Canada, the Appellate Body's ruling should be understood as indicating
that a transaction "may" be covered by multiple subparagraphs of Article 1.1(a)(1) of the SCM
Agreement. If the proper characterization of the ch allenged measure is under only one sub-paragraph,
as Canada recalls the Panel has found in the present disputes, then that is the end of the matter.
6.76 We have declined Japan's requested modificati on. The focus of Japan's request is the phrase
"would be" that is found in the second sentence of pa ragraph 7.174. This phrase refers to a possibility
that depends upon the Panel making a particular fi nding - namely, the possibility that the challenged
measures could be characterized under multiple s ubparagraphs of Article 1.1(a)(1) of the SCM
Agreement even if the Panel were to conclude that they could be legally characterized as a
"government purchases [of] goods" under the terms of Article 1.1( a)(1)(iii) of the SCM Agreement

As such, we consider the use of the conditional phrase "would be" to be correct and appropriate.

34. Paragraph 7.206

6.77 Japan submits that the characterization of th e global adjustment in paragraph 7.206 is
inaccurate because it does not reflect the fact that all OPA contracts (including non-FIT contracts) that
have a contract price in excess of HOEP cause increases to the global adjust ment to the extent of the
excess, and that other expenses associated with procurement contracts, such as expenses for
conservation measures and programmes, also directly increase the global adjustment. To this end,
Japan requests that paragraph 7.206 be modified an d has submitted text for this purpose. Canada has
not commented on Japan's requested modification. We accept Japan's requested changes and have
modified paragraph 7.206 accordingly.
35. Paragraph 7.223

6.78 The European Union requests that the Panel modify paragraph 7.206 to clarify that whether
the FIT Programme is construed in such a way to cover generation costs plus a reasonable rate of
return on investment is a contested issue. Canada asks the Panel to reject the European Union's
request on the same grounds Canada advanced to jus tify its objection to the European Union's similar
request with respect to paragraph 7.202 (see above). We have declined the European Union's request
for the same reason we rejected the European Union's requested modification to paragraph 7.202.
36. Paragraph 7.242

6.79 Japan requests that the Panel address in paragraph 7.242 the argument presented by Japan that
basing the interpretation of WTO obligations on the characterization of terms in municipal law
"would be tantamount to enabling the responding Me mber to determine whether the measures are
consistent with its WTO obligations ". In addition, Japan requests th at the Panel provide its reasoning
that the characterization of the Government of On tario was not "contrived" in light of the concern
regarding the adoption of protectionist policies th at was raised in a debate before the Ontario
Legislative Assembly. Canada submits that there is no need for the Panel to make the changes
requested by Japan, arguing that paragraph 7.24 2 already addresses Japan's argument concerning the
interpretation of WTO obligations in the light of the characterization of the challenged measures
under municipal law. Furthermore, Canada argues that the Panel's conclusion that the message
articulated in various instruments that the Govern ment of Ontario "purchases" electricity through the
FIT Programme is "by no means contrived" is suppo rted by evidence that is on the record including
documents emanating from the private sector. As such, Canada submits that the Panel need not make
the requested changes.
6.80 We believe that paragraph 7. 242 already addresses Japan's first concern in that it explicitly
states that the Panel's consideration of the muni cipal law characterization of the challenged measures
"is not dispositive of the analysis that we must undertake for the purpose of WTO law". Moreover, we
see no need to explain why we find that the referenc es to "purchases" and "procurement" contained in
various Government of Ontario instruments are not "contrived" in light of the evidence Japan has
submitted in Exhibit JPN-106. We fail to see how the suggestion in the record of the debate before the
Ontario Legislative Assembly that is contained in Exhibit JPN-106 has any bearing on determining
whether the description of the OPA's powers and responsibilities (which include the "purchase" and
"procurement" of electricity) in various legal instrume nts is contrived. In particular, the fact that a
member of Ontario's Legislative Assembly suggested that a local content rule may be protectionist
does not, in our view, imply that the Government of Ontario's decision to grant the OPA the power to
"purchase" and "procure" electricity (including unde r the FIT Programme) cannot be characterized as
one that is not contrived. Thus, we have decided not to make any changes to paragraph 7.242.

37. Paragraphs 7.245 and 7.247

6.81 Japan makes a number of requests for the Panel to clarify the reasoning articulated in
paragraphs 7.245 and 7.247 in support of its conclusion that a transaction properly characterized as
involving "government purchases [of] goods" under Article 1.1(a)(1)(iii) of the SCM Agreement
cannot also be a "direct transfer of funds" under Article 1.1(a)(1)(i) of the SCM Agreement. First,
Japan asks the Panel to explain the reasoning behind its conclusion in paragraph 7.245 in the light of
the finding of the Appellate Body in US – Large Civil Aircraft (Second Complaint) that the
"examples" referred to in Article 1.1(a)(i) are illustrative and non-exhaustive. Secondly, Japan asks
the Panel to provide additional explanations, in the light of certain alleged fi ndings of the Appellate
Body in US – Large Civil Aircraft (Second Complaint) , for what it describes as the Panel's finding in
paragraph 7.247 that "Article 1.1(a)(1) does no t explicitly spell out the relationship between
subparagraphs (i) and (iii)". In this regard, Japan considers that the Panel has failed to provide an
adequate explanation as to how its finding is consistent with the Appellate Body's conclusions in US –
Large Civil Aircraft (Second Complaint) , or any explanation as to why the Appellate Body's alleged
findings in footnotes are any less important than its findings in the body of its reports. Finally, Japan
asks the Panel to explicitly state whether it is rejecting the Appellate Body's findings in US – Large
Civil Aircraft (Second Complaint), and if so, to adequately explain its rationale for doing so.
6.82 Canada submits that Japan's requests should be rejected, arguing that the Panel has thoroughly
explained its findings and reasons with respect to the issue Japan raises in paragraphs 7.245-7.248. As
regards Japan's particular concerns about paragraph 7.247, Canada is of the view that the Panel's
statements are in accordance with the Appellate Body's general findings in US – Large Civil Aircraft
(Second Complaint) . In particular, Canada argues that in this paragraph, the Panel notes that the
Appellate Body's finding is permissive (i.e. th e Appellate Body said "does not expressly preclude"
and did not say, as Japan seems to imply, "permits" or "allows"). In addition, according to Canada, the
Panel properly interprets the relationship between "purchases [of] goods" and "direct transfer[s] of
funds". Thus, according to Canada, Japan is wrong to suggest that the Panel has not adequately
explained its legal reasoning.
6.83 Japan's first request for review relates to pa ragraph 7.245. As we understand it, Japan takes
issue with the following statement:
In this regard, we observe that the only tw o examples of 'direct transfer[s] of funds'
involving reciprocal rights and obligations that Article 1.1(a)(1)(i) identifies are
'loans' and 'equity infusion[s]'. Governme nt 'purchases of goods' could have easily
been added to these examples had the drafters considered that they should also be
viewed as falling within the scope of Artic le 1.1(a)(1)(i) of the SCM Agreement,
particularly given that they are explicitly mentioned in Article 1.1(a)(1)(iii) of the
SCM Agreement.
Japan asks us to explain this statement in the light of the Appellate Body's finding in US – Large Civil
Aircraft (Second Complaint) that the "examples" in Article 1.1(a)(1)(i) of the SCM Agreement are
illustrative and non-exhaustive. In our view, there is no need to provide the requested explanation
because there is no contradiction between our statemen ts in this paragraph and the Appellate Body's
finding that is cited by Japan. In particular, the fact that the "examples" set out in Article 1.1(a)(1)(i)
of the SCM Agreement are illustrative and non-exha ustive does not detract from our observation that
the words "purchases of goods" could have easily b een added to the text of Article 1.1(a)(1)(i) given
that such transactions are
 "explicitly mentioned in Article 1. 1(a)(1)(iii) of the SCM Agreement" .
Indeed, in our view, it would be expected that having explicitly referred to "government purchases
[of] goods" in Article 1.1(a)(1)(iii) of the SCM Agreement, the drafters of the SCM Agreement
would, in the light of the principle of effective treaty interpretation, have also made an explicit

reference to such transactions in Article 1.1(a)(1)(i ) of the SCM Agreement had they considered them
to fall under both sub-paragraphs. Finally on this point, it must be recalled that our reasons for finding
that transactions properly characterized as "govern ment purchases [of] goods" cannot also be "direct
transfer[s] of funds" are not only set out in paragraph 7.245 but also in paragraphs 7.246-7.247.
6.84 With respect to Japan's comments regarding paragr aph 7.247, we note that contrary to Japan's
contentions, the Panel did not find in this paragraph that Article 1. 1(a)(1) "explicitly spell[s] out the
relationship between subpara graphs (i) and (iii)". Moreover, the Panel has nowhere in this paragraph
stated that Appellate Body findings are "less important" when they are set out in footnotes compared
with the body of reports. Rather, as pointed out by Canada, in paragraph 7.247 the Panel notes that
when it comes to the relationship between the su b-paragraphs of Article 1.1(a)(1) of the SCM
Agreement, the Appellate Body statements set out in a footnote in US – Large Civil Aircraft (Second
Complaint) do not express any definitive c onclusion. Moreover, consistent with the Appellate Body's
observations in US – Large Civil Aircraft (Second Complaint) , the Panel recognizes in
paragraph 7.247 that it may be possible in certain ci rcumstances to characterize a measure as different
types of "financial contributions". However, in our view, the customary rules of interpretation of
public international law (and in particular the princi ple of effective treaty interpretation) do not allow
for such an outcome on the basis of the facts of the present disputes. It is therefore incorrect to suggest
that the Panel disagrees or rejects the Appellate Body's observation that it may be possible to
characterize a measure under more than one s ub-paragraph of Article 1.1(a)(1) of the SCM
Agreement.
6.85 Finally, footnote 453 (now footnote 473) explicitly states that the extract from the panel's
reasoning in US – Large Civil Aircraft (Second Complaint) that was rejected by the Appellate Body is
referred to in the present proceedings only as a "usef ul exposition of the interpretative problem that
we believe is created by the complainants' argume nts in these proceedings". Thus, we are not relying
upon or agreeing with the panel's finding in US – Large Civil Aircraft (Second Complaint), which
related to the question whether government purchases of services (transactions that are not explicitly
mentioned in Article 1.1(a)(1) of the SCM Agreement) could be characterized as "direct transfer[s] of
funds". Rather, by recalling the panel's reasoning on this question in US – Large Civil Aircraft
(Second Complaint) our focus is on the interpretative dile mma that the panel draws attention to,
namely, the consequence for the utility of the "pur chases goods" language in Ar ticle 1.1(a)(1)(iii), in
the light of the principle of effective treaty inte rpretation, of an interp retation that would allow
transactions involving government purchases of goods to be characterized as both government
"purchases [of] goods" under Article 1.1(a)(1)(iii) and as "direct transfer[s] of funds" under
Article 1.1(a)(i) of the SCM Agreement.
38. Paragraph 7.249

6.86 Japan requests that the Panel make findings w ith respect to its arguments concerning the
question whether the challenged measures amount to "i ncome or price support" within the meaning of
Article 1.1(a)(2) of the SCM Agreement, and con sequently, to undertake a separate review of the
merits of its related benefit arguments. While Japan agrees with the Panel that the benefit arguments it
has advanced are "essentially th e same" irrespective of whether the challenged measures are
characterized as "financial contributions" or "income or price support", Japan emphasizes that they are
not identical. Japan believes that Panel findings with respect to its "income or price support" line of
argument could have a material impact on any re view conducted by the Appellate Body, and are
necessary in order to not only achieve the prompt se ttlement of its dispute with Canada but also to
secure a positive resolution to the dispute in accordance with Articles 3.3 and 3.7 of the DSU.
6.87 Canada submits that Japan's request is w ithout merit as it relies upon the same set of
inappropriate benefit benchmarks that the Panel rejected in subsequent parts of its findings. Moreover,

according to Canada, the interim review stage is not the appropriate point in these proceedings to ask
for new factual and legal findings or attempt to re-a rgue one's case. Thus, Canada submits that Japan's
request should be rejected.
6.88 We have once again closely reviewed the argumen ts that Japan has advanced to support its
contention that the challenged measures confer a "benef it" within the meaning of Article 1.1(b) of the
SCM Agreement when they are characterized as a form of "income or price support" under
Article 1.1(a)(2) of the SCM Agreement. While th e arguments are not identical to those Japan has
advanced in relation to its contention that th e challenged measures confer a "benefit" when
characterized as "financial contribu tions", they do, by explicit cro ss-reference, rely upon the same
"market rates" to establish the alleged existence of benefit. Because the very same "market rates" are
rejected by the Panel majority in its benefit anal ysis, the outcome of the Panel's evaluation of the
merits of Japan's "income or price support" arguments, and therefore the merits of Japan's claims
concerning prohibited subsidization , would be the same irrespective of whether the Panel examined
Japan's contention that the challenged measures should be legally characterized as a form of "income
or price support" under Article 1.1(a)(2) of th e SCM Agreement. Thus, we see no compelling reason
to grant Japan's request for review.
39. Paragraphs 7.251, 7.308, 7.313(a) and footnote 588

6.89 Japan requests that the Panel make a number of modifications to paragraph 7.251 in order to
ensure that it more accurately reflects Japan's argume nts in respect of the electricity price benchmarks
that it has advanced in these proceedings for the purpose of establishing the existence of benefit. First,
Japan submits that the Panel incorrectly characterized one of the price benchmarks that it advanced as
the "weighted average HOEP" when Japan had in f act described this benchmark as the "weighted
average 'wholesale rate"". Secondly, Japan stat es that contrary to what is described in
paragraph 7.251, Japan did not refer to the "pri ce offered by two private retail operators" in its
arguments as "alternative" benchmarks. Rather, Jap an argues that this ev idence was advanced to
"confirm" that the retail rate functions as a "ceili ng" price. Japan asks the Panel to revise the fourth
sentence of paragraph 7.251 accordi ngly and submits draft text for th is purpose. Thirdly, Japan finds
that the fifth sentence in paragraph 7.251 is inaccura te when it states that Japan has asserted that retail
prices in Ontario represent a "proxy" for the maximu m level of the wholesale price of electricity in
Ontario. Japan asks the Panel to de lete this sentence. Finally, to re flect the above requests for review,
Japan asks the Panel to modify the first sentence of paragraph 7.251 to include a reference to not only
wholesale market prices but also retail market pr ices. Japan suggests a small modification to this
sentence for this purpose.
6.90 Japan makes another request for review th at is related to the changes it seeks to
paragraph 7.251. In particular, Japan asks the Panel to consider making separate and additional
findings to those made in paragr aphs 7.308 and 7.313(a) with respect to whether the Regulated Price
Plan ("RPP") prices are an appropriate market benchmark for the purpose of establishing the existence
of benefit. Japan submits that it has made a distin ct and "alternative" argument with respect to the
RPP prices that the Panel has not evaluated. Acco rding to Japan, it has argued that the RPP prices
confirm the existence of benefit because "they act as a ceiling for what consumers actually pay for
electricity within the regulated Ontario market, taking into account all the various sources of
electricity produced in Ontario, and all the subs idies that may be provided by the government to
electricity generators in Ontario".
6.91 Canada explains that it understands Japan's arguments concerning the electricity price
benchmarks it has advanced to include the fo llowing two proposed benchmarks: "the weighted
average 'wholesale rate' during 2010 for generators other than FIT and RESOP generators" and "the
commodity charge portion of retail prices". Canada asserts that contrary to Japan's suggestions, a

more accurate fourth sentence in paragraph 7.25 1 should refer to these benchmarks. As regards
Japan's requests for modifications to paragr aphs 7.308 and 7.313(a) and footnote 588 (now
footnote 610), Canada recalls that the purpose of inte rim review is not to request further factual or
legal findings. In any case, Canada submits that it h as answered Japan's assertion that the RPP prices
"serve as a ceiling on the market price of electricity" recalling that the RPP is "simply a regulated
price for Ontario electricity consumers that aggregat es the cost of paying for all electricity generated
for the province".
6.92 We have revised paragraph 7.251 (and consequently also footnote 588 (now footnote 610)) to
correct the misdescription of Japan's argument co ncerning the "weighted average 'wholesale rate'"
benchmark. The first sentence of paragraph 7.251 h as also been amended to indicate that Japan has
advanced not only wholesale level prices but also prices at the retail level of trade as suggested
benchmarks for the benefit analysis . We have also taken note of Japan's clarification that it did not
submit the evidence referred to in paragraph 7. 251 on private retail prices for the purpose of
advancing an alternative benchmark, but rather onl y to confirm that the RPP acts as a ceiling on the
electricity price. Thus, we have deleted the fifth sentence of paragraph 7.251, and described Japan's
alternative benchmark argument that is based on R PP prices in more detail. Japan's clarification
means that there is no longer any need for the Panel to evaluate the merits of the evidence concerning
private retail prices as alternative electricity pri ce benchmarks. However, because Japan has clarified
that the basis of its alternative retail price argument was RPP prices (and not private retail prices), we
have revised paragraph 7.317 so that it now addresse s the correct scope of Japan's alternative benefit
argument. We have also made consequential changes to paragraph 7.319.
40. Paragraph 7.252

6.93 Japan notes that in paragraph 7.252, the Pane l recognizes Japan's argument that the existence
of benefit can also be demonstrated by the history of the electricity market in Ontario and the design
and structure of the FIT Programme. However, acco rding to Japan, the Panel has not addressed this
argument in its findings. Japan therefore asks the Pa nel to do so. In addition, Japan asks the Panel to
modify the language used to describe the argument th at is summarized in paragraph 7.252 in order to
more accurately reflect what Japan has actually stat ed in its submissions. To this end, Japan proposes
a number of modifications. Canada submits that Jap an's request asks the Panel to make additional
findings despite the fact that the interim review stage of proceedings is limited to verifying precise
aspects of the Interim Reports. Thus, Canada urg es the Panel to reject Japan's request because,
Canada's view, it amounts to the improper use of the interim review process to re-litigate Japan's case.
6.94 We have modified paragraph 7.252 to more accu rately reflect Japan's argument. However, we
disagree with Japan when it asserts that the Panel did not address this line of argument in its findings.
It is clear from Japan's submissions that it is arguing that the recent history of the electricity market in
Ontario and the design and structure of the FIT Programme demonstrate the existence of benefit
because both of these factors show that Ontario's wholesale electricity market could not support the
existence of renewable electricity generators on the basis of the terms and conditions (including price)
available to electricity generators. This point is made in a number of places by Japan, but most clearly
in Japan's opening statement at the second meeti ng of the Panel where, after recalling Ontario's
market opening experience in 2002, the enactment of the Electricity Restructuring Act of 2004 and the
2009 Ministerial Direction establishing the FIT Progra mme, Japan states: "This history demonstrates
that the market price of MCP/HOEP is insufficient to support the existence of FIT generators in the
Ontario market. The Government's intervention, through the OPA, to offer prices above those
available in the market is the only reason FIT generators operate in the Ontario market today"19. Japan

19 Japan's opening statement at the second meeting of the Panel, paras. 10-13.

elaborated on this statement in its comments on Canada's response to Panel question No. 42 following
the second substance meeting, where it explained:
In the present case, the history of Ontario's electricity market confirms that FIT
generators would not have received anythi ng like the terms they receive under FIT
contracts absent the FIT Program.
{} This was Japan's point at paragraphs 10-13 of its
opening statement at the second meeting of th e Panel. Canada confirmed this point as
early as its first written submission, wher e it wrote: 'The experience with a
competitive market in 2002 demonstrated that the market alone would not be
sufficient to encourage the construction of ne w generation facilities [(e.g., wind and
solar PV facilities)] able to provide the additional long-term supply needed by
Ontario residents'. {} Canada has again just confirmed this point in response to
question 1 above, where it explained that th e Government of Ontario decided to put
an end to the period of liberalizati on in November 2002 because '[s]upply was
hampered by the [liberalized] market structure, which did not encourage sufficient
entry of new generators', and in order to 'facilitate investment in new generation'20.
6.95 Thus, the premise underlying Japan's historical and objective design and structure argument is
that these two factors demonstrate that the FIT ge nerators would not exist in the absence of the
Government of Ontario's intervention in the wholesal e electricity market. This line of argument is
recognized in paragraph 7.276 a nd subsequently addressed by the Panel, in particular, in
paragraphs 7.309-7.313. There is therefore no basis for Japan's request to make additional findings.
41. Paragraph 7.259

6.96 Canada submits that the references to its s ubmission in footnote 471 (now footnote 492) are
not exhaustive concerning Canada's arguments as to why the complainants' proposed benchmarks are
inappropriate. Canada asks that this be reflected in footnote 471 (now footnote 492) by adding the
words "See for instance" at the beginning. In additi on, Canada asks that a reference be added in
footnote 471 (now footnote 492) to paragraphs 136- 142 of Canada's opening statement at the second
meeting of the Panel because this passage is where its comments on the analytical approach that might
have been taken in this case are most co mprehensively discussed. Neither Japan nor the
European Union has commented on Canada's requ est. We have made the requested changes to
footnote 471 (now footnote 492).
42. Paragraphs 7.272 and 7.308

6.97 Canada argues that the description of the challenged FIT generators that is set out in
paragraphs 7.272 and 7.308 is ove rly broad and captures electricit y generators operating under the
FIT Programme whose activities have not been cha llenged by the complainants. To correct this
misdescription, Canada proposes two textual modi fications to the respective paragraphs. The
European Union proposes its own modifications fo r the same purpose. Japan has not commented on
Canada's request. We have made the appropriate am endments to the text of these two paragraphs to
address Canada's concern.
43. Footnote 503

6.98 The European Union observes that footnote 503 (now footnote 524) reproduces the same
content in terms of the background of Professor Hogan as stated in footnote 30 (now footnote 47) and

20 Japan's comments on Canada's response to Panel question No. 1 (second set) (footnotes omitted,
emphasis original).

suggests that the Panel eliminate this repetition. Canada has not commented on the European Union's
suggestion. We have made an appropriate modification to footnote 503 (now footnote 524).
44. Paragraph 7.297

6.99 Canada submits that the last sentence in paragraph 7.297 is incorrect to the extent that it states
that the OPG's "unregulated assets" receive th e HOEP because they have been "directed by the
Government of Ontario to accept whatever price is set regardless of whether this meets marginal
costs". In particular, Canada objects to the use of the "whatever price is set" language, and requests
that the sentence be revised to explain that the OPG's "unregulated assets" receive the HOEP because
the Government of Ontario considers, as a matter of policy, that the HOEP is sufficient for "these
older, largely depreciated assets". The European Union considers that the Panel's statement is
factually correct, but that it could be drafted in a different manner to account for Canada's concerns
without needing to add an explanation of the po licy reason behind the Government of Ontario's
direction. Japan has not commented on Canada 's requested change. We have modified
paragraph 7.297 to more accurately explain that the OPG's unregulated assets receive the HOEP,
regardless of whether this price covers their marginal costs.
45. Paragraph 7.304

6.100 Canada requests that the first sentence in paragraph 7.304 be redr afted in a way that
recognizes that Canada's arguments concerning the co mplainants' attempts to use out-of-jurisdiction
benchmarks included the submission that neither party has satisfied the standards set in WTO case
law for their application in the present disputes. Canada does not, however, challenge the accuracy of
what is stated in the first sentence of paragra ph 7.304. In other words, Canada asks that the
description in paragraph 7. 304 of Canada's position vis-à-vis the complainants' out-of-jurisdiction
benchmarks be amplified to capture the full range of its arguments. Japan submits that Canada's
request is inapposite to the subject addressed by th e Panel in paragraph 7.304, and suggests that the
Panel disregard them. Similarly, the European Union considers that Canada's request for clarification
relates to an issue that is different to that address ed by the Panel in paragraph 7.304. We agree with
Japan and the European Union. The subject matter of paragraphs 7.303-7.307 is the extent to which
the out-of-Province benchmarks that have been advanced by the complainants are derived from
competitive wholesale electricity markets . As all of the parties agree, paragraph 7.304 is accurate
when it explains that on this specific issue, Cana da has not challenged the complainants' allegations.
Thus, we see no need to accept Canada's requested modifications.
46. Footnote 599

6.101 The European Union argues that its submissions concerning the "guarantee element" in the
FIT Contract or the provision of more than r easonable remuneration on the basis of "construed"
prices, may help to substantiate a finding that th e challenged measures confer a benefit regardless of
whether the Panel accepts or rejects Canada's contentions on the relevant market. Thus, the
European Union asks the Panel to reconsider its conclusions on the merits of these arguments. Canada
submits that the European Union's request goes beyond the scope of interim review, and should
therefore be rejected.
6.102 The arguments the European Union refers to in its request for review were advanced on the
basis of an approach to the question of benefit that requires acceptance of Canada's view that
electricity produced by FIT generators is sold on a wholesale market that is separate from all other
electricity. Although the European Union suggests in its interim review request that it made these
arguments in the alternative, this is not at a ll clear from the actual submissions made during the
proceedings. Rather, it appears that the European Union advanced the rele vant arguments only in

response to Canada's benefit submissions in the event that the Panel were to follow them in its
evaluation of the question of benefit
21. As we have rejected Canada's contentions in this regard
(indeed, in part on the basis of the European Union's own arguments), it is unnecessary for us to
determine the merits of the European Union's argum ents. There is therefore no basis for the Panel to
reconsider its conclusions with respect of the European Union's arguments.
47. Paragraph 7.321

6.103 Japan asks the Panel to recognize in paragraph 7.321 that Japan has requested the Panel to
provide guidance on the proper benchmark for determin ing the existence of benefit in the event that
the Panel were to reject the benefit arguments it has advanced. The Europ ean Union also asks the
Panel to more accurately reflect its own request for the Panel not to limit its analysis to rejecting the
arguments it has advanced to substa ntiate its allegations of benefit. Canada finds the complainants'
requests inappropriate because, in Canada's view, they are not supported by any authority under WTO
law.
6.104 We agree with Canada that there is no authority in WTO law requiring a panel to consider
alternative arguments to substantia te a claim when those arguments have not been advanced by the
parties. However, we do not believe that the absence of any such obligation prevents the Panel
majority in these proceedings from setting out its own observations on how the question of benefit
could have been approached, provided, of course, th at in doing so the Panel majority does not end up
making the case for any of the parties 22. In this regard, we note that the complainants have explicitly
asked the Panel to provide additional guidance on the question of benefit, an issue that has been at the
centre of substantial debate between the parties in the context of a dense and complicated fact pattern.
In this light, and bearing in mind our duties and responsibilities under the DSU 23 as well as the
objectives of the WTO dispute settlement system 24, we do not believe that the absence of any
authority in WTO law compelling panels to consider the merits of arguments that have not been made
by parties to a dispute prevents the Panel majority from outlining its own observations on the question
of benefit in these proceedings, as requested by the complainants. We have therefore decided to
accept the changes to paragraph 7.321 that have been requested by the European Union and Japan.
48. Paragraph 7.322

6.105 Canada suggests that the Panel should replace the words "those that currently exist" at the end
of paragraph 7.322 with "prevaili ng market conditions". Japan submits that Canada has offered no
explanation as to why the term from Article 14(d) of the SCM Agreement should be used in
paragraph 7.322. In Japan's view, the terms advanced by Canada are not necessarily synonymous with
those used by the Panel. Thus, in the absence of any explanation on the part of Canada as to why the
language chosen by the Panel should be modified, Japan requests that the Panel reject Canada's
request. The European Union also notes that ther e is a difference between the terms "prevailing
market conditions" and "those that currently exist" in that the former refers to the prevailing market
conditions (i.e. qualifying them as "prevailing") whereas the latter refers to those conditions (all or
most, without qualifying them) that currently exist in Ontario. Therefore, not unlike Japan, the
European Union asks the Panel to decline the changes that Canada has requested.

21 See, for example, European Union's second wr itten submission, paras. 72, 78 and 82; and opening
statement at the second meeting of the Panel, paras. 24-25.
22 See, e.g. Appellate Body Report, Japan – Agricultural Products II, para. 129.
23 Article 11, DSU.
24 See, in particular, Articles 3.2, 3.3 and 3.7 of the DSU.

6.106 Japan submits that the exhibits cited in f ootnote 603 (now footnote 632) do not support the
proposition that the Government of Ontario has decide d that part of its additional generating capacity
must come "in particular" from "small-scale proj ects using solar PV and wind power technologies".
Thus, Japan requests that the Panel remove the re ferences to "small-scale" from this paragraph.
Canada argues that Exhibits CDA-55 and CDA-45 refer to the scale of the projects referred to by the
Panel, and therefore considers the Panel's statement justified and based on record evidence.
6.107 Turning first to Canada's requested modificati on, there is, in our view, very little, if any,
difference between the expressions "current" or "p revailing" conditions of supply and demand in a
particular market. Indeed, one of the definitions of the word "prevail" is "current". Nevertheless, it
was not the Panel's intention to articulate in para graph 7.322 the test for determining the amount of a
subsidy in terms of benefit that is described under Article 14(d) of the SCM Agreement. We have
therefore declined Canada's request.
6.108 As regards Japan's request for review, we have modified the language of the relevant passage
in paragraph 7.322 as well as the references in f ootnote 603 (now footnote 632) to more accurately
reflect the point the Panel intended to make.
49. Paragraphs 7.322-7.326 and 8.7

6.109 The European Union requests that the Panel complete the benefit analysis allegedly
performed by the Panel in paragra phs 7.322-7.325 (now paragraphs 7.322-7.327) by undertaking any
one or more of three specific actions. First, the Eu ropean Union submits that the Panel may complete
the benefit analysis on the basis of the existing set of facts that are on the record of these disputes. In
this regard, the European Union points to: (i) the in formation it has provided on the costs of solar PV
and windpower generation; (ii) the prices that windpower generators have offered in bidding
processes in Quebec in 2008; (iii) its submissions on the "reasonable" rate of return offered to FIT
generators; and (iv) its arguments relating to the possibility of obtaining electricity supply via an
auction process or by direct negotiation with indi vidual generators. Secondly, the European Union
submits that even if the Panel were to consider that the facts on the record were insufficient to
complete its analysis, it may find the existence of benefit by drawing adverse inferences in the light of
what the European Union describes as the Panel's view that Cana da has failed to sufficiently explain
several pieces of information necessary to understand the 11% rate of return. Thirdly, and in any
event, the European Union mainta ins that the Panel should exercise its authority under Article 13 of
the DSU and seek the information necessary for it to co mplete its benefit analysis. In this regard, the
European Union fails to see how the Panel's an alysis could serve the purposes described in
Articles 3.4 and 3.7 of the DSU if it were to stop at a given point because the Panel considers there are
insufficient facts on the record to complete its wo rk. The European Union finds particular support for
this latter request in US – Large Civil Aircraft (Second Complaint) , where the Appellate Body found
that "by failing to exercise its authority to seek out relevant information to satisfy its predominance
approach in assessing the claim before it, the Pane l acted inconsistently with its obligations under
Article 11 of the DSU…"
25. According to the European Union, th e Panel in the present proceedings is
in the same position as the panel in US – Large Civil Aircraft (Second Complaint) , which developed
an alternative approach to examine one of the issu es at stake but did not complete the analysis since
neither party was given the opportunity to prov ide the necessary evidence based on the panel's
approach. Finally, in the event that the Panel we re to reject the previous three requests, the
European Union asks the Panel to make a number of changes to paragraphs 7.326(ii) and 8.7 (now
paragraphs 7.328(ii) and 8.7) to reflect its view on what would be a more accurate description of the
Panel's findings.

25 Appellate Body Report, US – Large Civil Aircraft (Second Complaint), para. 1145.

6.110 Not unlike the European Union, Japan submits th at there is sufficient evidence on the record
of these disputes for the Panel to complete its be nefit analysis and asks the Panel to do so. In
particular, Japan points to a series of facts that it argues demonstrate that solar PV and windpower FIT
projects, although carrying principally sovereign risk, ha ve a targeted pre-tax rate of return on equity
of 15.8%, whereas the long-term Canadian govern ment bond yield is 4.25%. Moreover, Japan notes
that while Ontario's regulated utilities, which do not operate on the basis of a price that is guaranteed
for 20 years, were set a target rate of return for 2009 of 9.75%, the actual rate of return obtained by
such entities in 2011 was 5%, whereas the pre-tax rate of return for FIT generators was, according to
Japan, set at 15.8%. Thus, Japan ar gues that the record contains su fficient evidence for the Panel to
complete its benefit analysis and find the existence of benefit.
6.111 Canada points out that there is nothing in WT O law requiring a panel to consider alternative
approaches to an issue that have not been proposed by the parties, particularly after a panel has found
that the complainant(s) have failed to make their ca se regarding that issue. Canada emphasizes that a
panel is not entitled to make the case for any of the parties. Moreover, referring inter alia to EC –
Sardines and Japan – DRAMs
26, Canada submits that it is well es tablished that the interim review
stage of a proceeding is not intended to be used to change a panel's decision, re-argue a case,
introduce new evidence or make new arguments. Rather , in Canada's view, inte rim review is limited
to reviewing "precise aspects" of a report. Finall y, Canada maintains that the European Union's
reliance on US – Large Civil Aircraft (Second Complaint) to support its contention that the Panel must
seek new information is misplaced. In this regard , Canada notes that in the present proceedings, the
panel's analysis amounts to a "discussion of theoreti cal benchmarks after its findings on the issue of
benefit have been made", whereas in US – Large Civil Aircraft (Second Complaint) , the panel used a
methodology that was not suggested by a party, nor di scussed with the parties before the panel used it
to make its findings. Thus, for all of these reasons, Canada submits that the complainants' requests for
review should be rejected in their entirety.
6.112 The complainants requests for interim re view of paragraphs 7.322-7.326 (now
paragraphs 7.322-7.328) are focused on the Panel majo rity's observations that are set out in these
paragraphs on how they consider th e question of benefit could have been addressed in these disputes.
As already explained 27, the Panel is of the view that there is no authority in WTO law requiring a
panel to consider alternative arguments to substan tiate a claim when those arguments have not been
advanced by the parties. Nevertheless, in the light of the complainants' explicit requests for the Panel
to explain its own position with respect to the questi on of benefit were it to reject the substantial and
diverse range of submissions they themselves have made on the issue, the Panel majority decided to
set out its own observations on one approach it cons iders could have been validly pursued in these
proceedings. The Panel majority did so bearing in mind its duties and responsibilities under the
DSU28, which include the obligation not to make a prima facie case for a party that bears the burden
of making it29.
6.113 As is evident from the language used by th e Panel to draft its overall conclusions and
recommendations in Section 8 of the respective Reports, the Panel majority's observations in
paragraphs 7.322-7.326 (now paragr aphs 7.322-7.328) do not and shoul d not be considered to form
part of the Panel majority's findings and conclusions on the question of benefit. Rather, they should be
viewed as an attempt by the Panel majority to respond to the complainants' specific requests in a
manner that is consistent with a panel's tasks and obligations unde r WTO law. In other words, the

26 In particular, Appellate Body Report, EC – Sardines, para. 301; and Panel Report, Japan – DRAMs
(Korea), para. 6.2.
27 See above, para. 6.104.
28 Article 11, DSU.
29 See, for example, Appellate Body Report, Japan – Agricultural Products II, para. 129.

Panel majority's observations do not form part of the Panel majority's "benefit analysis" for the
purpose of determining the merits of the complainants' claims. For this reason, there is no basis for the
Panel to accept the complainants' requests for revi ew. Thus, to the extent that the complainants'
requests for interim review are premised on the view that the Panel majority's observations represent
actual findings on the merits of their subsidization argumen ts that should be elaborated or further
developed with a view to "comple ting the benefit analysis", they cannot be accepted. In any case, we
are of the view that certain aspects of the comp lainants' requests that the Panel take account of
particular facts that are allegedly already on the record, as well as the European Union's request for
the Panel to seek additional information, go beyond th e scope of interim review proceedings. In this
respect, we agree with Canada that it is well establis hed that the interim review stage of a proceeding
is not intended to be used to re-argue a case, make new arguments or to introduce new evidence.
Thus, we have rejected the complainants' requests also for this reason.
6.114 In order to clarify that the Panel majority's observations are not findings on the merits of the
complainants' subsidization arguments, we have ma de a number of changes to paragraphs 7.321 and
7.325 (now paragraphs 7.321 an d 7.325-7.327). In addition, we have made changes to
paragraph 7.325 (now para graphs 7.325-7.327) to reflect some of the facts the complainants have
pointed to in their interim review comments that were not previously fully taken into account by the
Panel majority.
VII. PANEL FINDINGS
A.
INTRODUCTION
1. General principles of treaty interpretation, the applicable standard of review and
burden of proof
(a) Treaty interpretation
7.1 With respect to the question of legal interpretation, Article 3.2 of the DSU provides that
Members recognize that the dispute settlement system serves to clarify the provisions of the covered
agreements "in accordance with customary rules of interpretation of public international law".
Article 31 of the Vienna Convention on th e Law of Treaties ("Vienna Convention") 30 is generally
accepted to be one such customary rule. Paragraph 1 of this rule reads as follows:
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.
7.2 There is a considerable body of WTO case law d ealing with the application of Article 31 of
the Vienna Convention in WTO dispute settlement. It is clear that interpretation must be based above
all on the text of the treaty 31, but that the context of the treaty also plays an important role. It is also
well-established that customary principles of treat y interpretation "neither require nor condone the
imputation into a treaty of words that are not there or the importation into a treaty of concepts that
were not intended"
32. Furthermore, panels "must be guided by the rules of treaty interpretation set out

30 The Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, 1155 United Nations
Treaty Series 331 (1980); 8 International Legal Materials 679 (1969).
31 Appellate Body Report, Japan – Alcoholic Beverages II, p. 11.
32 Appellate Body Report, India – Patents (US), para. 45.

in the Vienna Convention, and must not add to or diminish rights and obligations provided in the
WTO Agreement
"33.
(b) Standard of review
7.3 Panels generally are bound by the standard of review set forth in Article 11 of the DSU,
which provides, in relevant part, that:
[A] panel should make an objective assessment of the matter before it, including an
objective assessment of the facts of the cas e and the applicability of and conformity
with the relevant covered agreements … (emphasis added)
7.4 The obligation imposed by Article 11 of the DSU includes the consideration of all aspects of
the matter, both factual and legal, and implies inter alia that a panel should consider the issues raised,
without overstepping its terms of re ference. Article 11 further provid es that panels should also make
such other findings as will assist the DSB in making the recommendations or in giving the rulings
provided for in the covered agreements.
(c) Burden of proof
7.5 The general principles applicable to the allo cation of the burden of proof in WTO dispute
settlement require that a party claiming a viola tion of a provision of a WTO Agreement must assert
and prove its claim 34. Therefore, the complainants bear the burden of demonstrating that the
challenged measures are inconsis tent with the SCM Agreement, the TRIMs Agreement and the
GATT 1994. The Appellate Body has stated that a complaining party will satisfy its burden when it
establishes a prima facie case, namely a case which, in the ab sence of effective refutation by the
defending party, requires a panel, as a matter of la w, to rule in favour of the complaining party 35.
Finally, it is generally for each party asserting a fact to provide proof thereof36.
2. Measures at issue and summary of claims
7.6 The complainants have brought these disputes against Canada in order to challenge the WTO-
consistency of the "Minimum Required Domestic Content Level" prescribed under the FIT
Programme adopted by the Government of the Province of Ontario 37 in 2009, as well as all individual
FIT and microFIT Contracts implementing this requirement since the FIT Programme's inception
("the measures at issue" or "the challenged measures"). According to the complainants, the "Minimum
Required Domestic Content Level" renders the FI T Programme, and all relevant FIT and microFIT
Contracts involving electricity generation projects using solar PV or windpower technology
38,
measures incompatible with Article III:4 of the General Agreement on Tariffs and Trade 1994
("GATT 1994"), trade-related investment measures (" TRIMs") inconsistent with Article 2.1 of the
Agreement on Trade-Related Investment Measures ("TRIMs Agreement"), and prohibited subsidies

33 Appellate Body Report, India – Patents (US), para. 46.
34 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
35 Appellate Body Report, EC – Hormones, para. 104.
36 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
37 It is not disputed that, under public international law, Canada is responsible for the actions of the
Government of the Province of Ontario ("Government of Ontario").
38 The "Minimum Required Domestic Content Level" is prescribed for solar PV facilities operating
under either a FIT or microFIT Contract, as well as windpower facilities operatin g under a FIT Contract. A
more detailed description of the FIT Programme and the FIT and microFIT Contracts, including the "Minimum
Required Domestic Content Level", is set out below at paras. 7.64-7.68, 7.158-7.166, and 7.195-7.219.

under the terms of Articles 3.1(b) and 3.2 of the Agreement on Subsidies and Countervailing
Measures ("SCM Agreement").
7.7 Throughout these proceedings, however, the complainants have emphasized that in contesting
the WTO-consistency of the challenged measures, they do not question the legitimacy of the
objectives pursued by the Government of Ontari o through the FIT Programme of reducing carbon
emissions and promoting the generation of electricity from renewable energy sources. In particular,
Japan has explained that "Japan do es not take issue with Ontario's st ated goal of enhancing renewable
energy generation"
39 or "the government's intervention as such to internalize the positive externalities
of renewable energy generation technologies" 40. Likewise, the European Union does not "contest the
general purpose of the FIT Program, as helping to pr omote electricity supply from renewable energy
sources", highlighting that "[s]uch a purpose is legitimately valid and … WTO Members can and
should actively support it" 41. What the complainants call into quest ion is limited to the alleged trade-
distortive element of the challenged measures, wh ich they identify to be the "Minimum Required
Domestic Content Level" given effect through the FIT Programme and the FIT and microFIT
Contracts. According to the complainants, this asp ect of the challenged measures affords a form of
WTO-inconsistent protection to producers of certain types of equipment used to generate electricity
from solar and wind energy ("renewable energy gene ration equipment") that are based in Ontario to
the detriment of competing industries in other WTO Members, and should therefore be eliminated 42.
Thus, as Japan has declared 43, these disputes cannot be properly characterized as "trade and
environment" disputes, but rather, they should be thought of as "trade and investment" disputes.
3. Preliminary rulings
7.8 The Panel announced its conclusions on the me rits of Canada's requests for preliminary
rulings at the opening session of the first substantiv e meeting with the parties on 27 March 2012. The
Panel dismissed Canada's requests finding that the le gal bases of the complainants' prohibited subsidy
claims were described with sufficient clarity in their respective Pane l Request to "present the problem
clearly". The Panel subsequently issued its pre liminary rulings to the parties in written form on
11 May 2012. After consulting with the parties, the Panel decided: (a) to circulate its preliminary
rulings to all Members; and (b) that the circulated preliminary rulings would form an integral part of
the final Panel Reports, subject to any revisions necessary in the light of comments received from the
parties during interim review. The Panel's prelimin ary rulings were circulated on 25 May 2012 in
documents WT/DS412/8 and WT/DS426/7.
4. Factual background
(a) Introduction
7.9 As already mentioned, these disputes are a bout the "Minimum Required Domestic Content
Level" that is applied by the Province of On tario under the FIT Programme, and the FIT and
microFIT Contracts, in relation to certain elec tricity generation facilities utilizing solar PV and
windpower technology. In order to fully understand these measures and properly evaluate the merits
of the complainants' claims, it is, in our view, essenti al to comprehend the role they play in Ontario's
electricity system. In order to do so, we believe it is important to appreciate not only how Ontario's

39 Japan's first written submission, para. 3.
40 Japan's response to Panel question No. 44 (first set).
41 European Union's first written submission, para. 2; and opening statement at the first meeting of the
Panel, para. 3.
42 Japan's first written submission, paras. 1-3; opening statement at the first meeting of the Panel,
para. 5; European Union's first written submission, paras. 2-6; and second written submission, para. 1.
43 Japan's first written submission, para. 3.

electricity system currently operates and has evolved over time, but also the main characteristics and
features of electricity and electricity systems in general. The complexity of electricity systems and
how electricity prices are determined in Ontario are germane to much of our analysis of the
complainants' claims. Thus, in the following section of our Reports, we set out what we consider to be
the overall factual background against which we will review and evaluate the parties' arguments
44. We
start by outlining the key characteristics of electricity and electricity systems in general, before briefly
describing the history of Ontario's electricity syst em, and then turning to explain the structure and
operation of the electricity system that exists in Ontario at present drawing largely from the
description provided by Japan in its first written submission 45. The section ends with a short summary
of the key features of the challenged measures – the FIT Programme, and the FIT and microFIT
Contracts.
(b) Electricity and electricity systems
7.10 Electricity is the lifeblood of modern society. Yet it is invisible to the naked eye and often
unnoticed in the day-to-day lives of billions of people. There is little doubt , however, that reliable
systems of electricity are the engines that drive economies world-wide, bringing power to a host of
consumers for a myriad of uses and applications including in homes, factories, offices, farms,
transportation systems and telecommunications ne tworks. Most goods depend upon electricity for
their production, as do essential services ranging from health-care to banking. Few discoveries can
boast such wide-ranging impacts on the quality of human life as electricity.
7.11 Electricity has a number of specific properties compared to other goods 46. The provision of a
secure, safe, reliable and sustainable supply of electr icity requires a large system that has to be in
continuous operation to ensure that it remains energi sed. In general, electricity is a reliable form of
energy but it is also extremely dangerous if the system is not secured against accidental leakage. A
critical physical characteristic of electricity is that it is intangible and, with certain limited exceptions,
cannot be effectively stored47. It is particularly because of the latte r characteristic that electricity must

44 The facts that are described in this section will, to the extent necessary, be furt her explained and
elaborated in the course of our evaluation of the parties' arguments in the remainder of these Reports.
45 We note that Japan's factual description of Ontario's electricity system was adopted by the
European Union as part of its arguments in these proceedings, and to a large extent, has not been contested by
Canada.
46 We note that it is not contested in these disputes that electricity produced from electricity generation
facilities (what the parties refer to as "commodity" electricity) is a good and a product for the purpose of the
covered agreements that are at issue. Indeed, both the Eu ropean Union and Canada argue this to be the case. In
doing so, the European Union explains that a number of WTO Members (including the European Union and the
United States) have relied upon the optional heading for "electrical energy" co ntained in the Harmonized
Commodity Description and Coding System to take tariff commitments with respect to electricity in their GATT
Schedules, or as in the case of Canada, simply include the relevant tariff line without setting a tariff binding.
Although explicitly stating that Japan does not take a position on whether electricity qualifies as a good or a
product, Japan describes electricity produced from generating facilities as a "commodity", and recognizes that it
is treated as a good in the optional heading contained in the Harmonized Commodity Description and Coding
System. Significantly, in our view, Japan has at no stage in these proceedings responded to Canada's argument
that the challenged measures in volve government purchases of goods by rejecting Canada's contention that
electricity is a good and a product. See Japan's response to Panel questions No. 43 (first set) and No. 51 (second
set); first written submission, paras. 85, 96-97, 99 and 224; European Union's response to Panel question No. 51
(second set); and Canada's response to Panel question No. 51(second set).
47 Pumped-storage hydroelectric facilities provide a li mited means of storing electricity. Such facilities
use electricity to pump water into reservoirs at higher elevations when demand is low, and release it through
turbines to generate electricity during peak-demand pe riods. William W. Hogan, "Overview of the Electricity
System in the Province of Ontario", 21 December 2011, Exhibit CDA-2, ("Hogan Report"), fn. 6.
Professor William W. Hogan is the Raymond Plank Profes sor of Global Energy Policy at Harvard University

be generated at precisely the time that it is consum ed by end-users. Electricity is delivered to
consumers through the operation of a vast integrated infrastructure of high-voltage transmission lines
(connecting generators to distributors and large cons umers) and lower-voltage distribution lines that
ultimately link to individual consumers
48. This is generally referred to as a grid and requires a massive
infrastructure of complementary equipment to ensure th at it functions. Access to this grid either to
supply electricity into it or to take electricity out of it has to be tightly controlled to ensure the
integrity of the system as a whole. Electricity delivery networks will fail if the quantity of electricity
demanded (known as "load" in industry terminology) is greater or less than the quantity of electricity
supplied for any length of time
49. It is therefore necessary to maintain a continuous supply-demand
balance between generators and consumers, a task co mplicated by the daily fluctuations in electricity
demand as well as the physical capacity limits of tran smission and distribution lines. When important
imbalances occur, electricity networks can be d estabilized, leading to brownouts, blackouts or, in
extreme cases, the interruption of power to all consumers 50. In the event of a major failure in a grid its
restarting can take a significant period of time wh ich is massively disruptive to modern economies
and societies.
7.12 One important consequence of the need to maintain a continuous supply-demand balance
across an entire electricity system is that uncoordi nated bilateral trades betwee n buyers and sellers of
electricity cannot take place. In other words, b ecause of the nature of how electricity must be
produced and consumed, it is generally not possible for an individual consumer to enter into an
individual supply contract with one or more speci fic generators. As a result, electricity systems
require some kind of central coordination mechanism to ensure that the output of generators is exactly
equal to the amount demanded by consumers (plu s inevitable transmission losses) and that the
physical limitations of the electricity system are not violated51.
7.13 The fact that there are no close substitutes for electricity, combined with a lack of easily
observable price signals for end users in genera l, implies that electricity demand is largely
unresponsive to prices in the short run (i.e. it is re latively price inelastic). Thus, global electricity
demand will fluctuate over the course of a day, week, month or year, as factors other than price (e.g.
air temperature and hours of daylight) cause the demand for electricity to change. A typical pattern of
electricity demand on a weekday in Ontario would s how that most electricity is consumed during
daylight hours, with consumption steadily incr easing from 5.00 a.m. until reaching its peak at around
5.00 p.m.
52.
7.14 The fact that electricity cannot be stored in large quantities and that demand for electricity
fluctuates over any day means that specific forms of generating capacity have to be developed to
provide for this fluctuation. In addition, to keep a grid functional it has to be kept operational or "live"
continuously. Therefore, in order to satisfy dema nd, electricity systems utilize a mix of generation
technologies, each with different cost structures a nd operational requirements. According to industry
practice, the different types of facilities may be d escribed as "base-load", "intermediate" or "peaking",

where he is inter alia the Research Director of the Harvard Elect ricity Policy Group. Professor Hogan has been
actively engaged in the design and improvement of competitive electricity markets in many regions of the
United States, as well as around the world, from England to Australia. His activities include designing the
market structures and market rules by which regional transmission organizations, in various forms, coordinate
bid-based markets for energy, ancillary services, and financial transmission rights.
48 Electricity may also be obtained through cogene ration facilities. See Ontario' Long-Term Energy
Plan, Exhibit CDA-6.
49 Hogan Report, Exhibit CDA-2, p. 13.
50 Hogan Report, Exhibit CDA-2, p. 13.
51 Hogan Report, Exhibit CDA-2, p. 12.
52 A graphical depiction of the patterns of weekday demand for electricity in Ontario in Summer and
Winter can be found below at para. 7.279.

depending upon when and for how long they operate , whether they can raise or lower their output
rapidly in a controlled manner ("dispatchability"), and whether their costs are mostly fixed or
variable. The reliability of a generation facility's output is measured by its "capacity factor", which is
defined as the percentage of hours during the year that it is able to operate.
7.15 Base-load generation is that portion of an electric ity system's supply mix that is expected to
be able to operate at all times, i.e. during bot h low and high demand periods . Base load generation is
typically characterized by high fixed costs, lo w marginal costs, and high capacity factors.
Hydroelectric and nuclear stations, both of which have large sunk capital costs and minimal fuel costs,
are quintessential examples of base-load power, but this function may also be performed by other
technologies (e.g. coal) depending on the supply mix in a given jurisdiction and on the cost of fuel.
Although base-load generators have high capacity factors, they tend to have more limited
dispatchability. Hydroelectric plants are an exception in that their output can be raised or lowered on
relatively short notice.
7.16 Intermediate-load gene ration supplies power when system demand is above its minimum
level but still below its maximum level. It is gene rally characterized by moderate fixed and marginal
costs. Coal plants are frequently used for intermediate generation, but improvements in the efficiency
of natural gas plants and falling fuel prices have made natural gas a viable option for intermediate
supply. Coal-fired generation is less dispatchable than natural gas but more dispatchable than nuclear.
7.17 Peak-load generators tend to ha ve lower fixed costs than other types of facilities, as well as
relatively high marginal costs, and a high degree of dispatchability. Peaking generators may only run
infrequently, usually at times when demand is near the system-wide capacity limit.
7.18 Up until fairly recent times, a mix of th e above-mentioned "conventional" generation
technologies has traditionally been considered to pr ovide for the most economically efficient way of
producing power for the purpose of reliable electri city systems. However, concerns over the
environmental impact and cost of certain technologies have increasingly emerged as key
considerations in the choice of supply mix
53. To address these concerns, electricity systems around the
world have gradually begun to include renewable technologies into their production mix.
7.19 Generation facilities utilizing renewable ener gy technologies, such as solar PV and
windpower, resemble base-load generation in that most of their costs are capital costs, with fuel costs
being minimal or non-existent. However, they diffe r from base-load generation in that their capacity
utilization is lower due to intermittent output. Wind turbines only produce electricity when the wind is
blowing, which may or may not coincide with cons umer demand. In contrast to the uncertainty of
wind generation, solar PV is more predictable, producing all of its output during the day and none at
night. A downside of solar generation is that its out put falls just when daily demand is increasing as
the sun sets and households and businesses turn on th eir lights. The fact that solar production runs
counter to daily load profiles forces conventional ge nerators to ramp up their production at night in
order to make up for lost output from solar genera tors. As a result, generation facilities utilizing solar
PV and windpower technologies may need to be pa ired with conventional generation in order to
minimize the potential for supply disruptions54.
7.20 Until the 1970s, electricity generation in most countries was dominated by vertically
integrated monopolies, structured as either state- owned enterprises or regulated private monopolies.
Monopolies were tolerated due to the belief that economies of scale in electricity could only be
captured by a single, large producer. Advances in generation technology and the desire of private

53 Hogan Report, Exhibit CDA-2, p. 6.
54 Hogan Report, Exhibit CDA-2, p. 11.

suppliers to gain full access to transmission networks eventually broke down this consensus. Since the
1970s, many countries have restructured their electricity systems to incorporate various elements of
competition.
(c) Electricity in Ontario
(i) 1906 to 2002
7.21 The origins of Ontario's electricity system can be traced back to 1906, when the Government
of Ontario established the Hydro-Electric Power Commission of Ontario ("HEPCO") as "the world's
first publicly owned electric utility"
55. In its early years, Ontario's el ectricity system relied almost
entirely upon hydroelectric power, but as demand for el ectricity grew, the Province chose to diversify
its supply mix, adding coal-fired power stations during the 1950s and nuclear power in the 1970s 56. In
1974, HEPCO was recognized as a "crown corporation" and renamed Ontario Hydro.
7.22 As a vertically integrated public utility w ith generation, transmission and distribution
functions, Ontario Hydro dominated the electricity sector until the Energy Competition Act of 1998 ,
which enacted the Electricity Act of 1998 , authorized its "unbundling" into five successor entities 57.
By this time, much of Ontario's electricity infrast ructure, including its coal-fired power plants, needed
to be refurbished or replaced 58. In addition, cost overruns in On tario Hydro's nuclear programme had
left the utility heavily indebted, and provided a strong incentive to pursue market-oriented reforms
along similar lines to what had been tried in other jurisdictions 59. The successor entities to Ontario
Hydro were: (i) the Independent Market Operator (subsequently renamed the Independent Electricity
System Operator in 2005 (see below)), charged with administering Ontario's wholesale electricity
market and directing the flow of electricity from generators to consumers through the transmission
system; (ii) Ontario Power Generation ("OPG"), wh ich inherited Ontario Hydro's generation assets, at
the time accounting for approximately 90% of Ontario's electricity capacity; (iii) Hydro One Inc.
("Hydro One" 60), which assumed Ontario Hydro's transmi ssion network and rural local distribution
businesses; (iv) the Ontario Electric ity Financial Corporation ("OEFC" 61), which inherited other
Ontario Hydro assets and liabilities, including c ontracts with Non-Utility Generators ("NUGs" 62) and
CAD 20 billion in stranded debt; and (v) the El ectrical Safety Authority, which was given
responsibility for regulating the system's safety 63. In addition, the Ontario Energy Board Act of 1998
designated the OEB as the regulator of the new electricity market, with the authority to, inter alia,
approve certain rates and prices applicable in the market64.

55 Ontario's Long-Term Energy Plan, Exhibit CDA-6, p. 5.
56 Ontario's Long-Term Energy Plan, Exhibit CDA-6, p. 5.
57 Ontario's Long-Term Energy Plan, Exhibit CDA-6, p. 5.
58 Ontario's Long-Term Energy Plan, Exhibit CDA-6, p. 5; and Hogan Report, Exhibit CDA-2, p. 19.
59 See e.g. Hogan Report, Exhibit CDA-2, pp. 18-19; and Report of the Advisory Committee on
Competition in Ontario's Electricity System to the Ontario Minister of Environment and Energy, "A Framework
for Competition", May 1996, ("A Framework for Competition"), Exhibit CDA-3, pp. 27-28.
60 The basic corporate structure of Hydro One and the nature of its current operations in Ontario are
discussed further below at paras. 7.34-7.35 and 7.234-7.238.
61 The basic corporate structure of th e OEFC and the nature of its curre nt operations in Ontario, to the
extent relevant to the arguments made in the present proceedings, are discussed further below at para. 7.43.
62 The role of NUGs in Ontario's power system is explained below at paras. 7.26 and 7.31.
63 Hogan Report, Exhibit CDA-2, pp. 20-21.
64 Ontario Energy Board Act of 1998, Exhibit JPN-6.

(ii) The 2002 competitive wholesale market
65
7.23 After several years of preparation, Ontario's competitive wholesale electricity market opened
in May 2002. It was hoped that the restructuri ng of the electricity sector would attract private
investment into the generation business, but despite a 30% rise in the price of electricity in the months
following the market opening, the anticipated investme nt failed to materialize. Instead, the relatively
high electricity prices, caused by increased demand due to record high temperatures in Ontario over
the summer of 2002, led the Government of the day to temporarily freeze electricity prices for
residential, institutional and small business consumers66.
7.24 As a result of the problems encountered dur ing the 2002 market opening experience, the
Government of Ontario decided to once again restru cture Ontario's electricity system in 2004, and to
this end enacted the Electricity Restructuring Act of 2004 in order to "restructure Ontario's electricity
sector, to promote the expansion of electricity supply and capacity, including supply and capacity
from alternative and renewable energy sources, faci litate load management and electricity demand
management, encourage electricity conservation and the efficient use of electricity and to regulate
prices in part of the electricity sector" 67. One of the key reforms introduced under the Electricity
Restructuring Act of 2004 was the creation of the Ontario Power Authority ("OPA"), which was given
a number of important tasks including responsibilit y for overall long-term system planning, activities
in support of ensuring an adequate, reliable and s ecure electricity supply, and the promotion of the
diversification of Ontario's electricity supply w ith a particular emphasis on renewable and clean
energy68. The Electricity Restructuring Act of 2004 laid the foundations for the electricity system that
currently operates in Ontario.
(iii) Ontario's current "hybrid" electricity system
7.25 In its current incarnation, Ontario's electric ity system has been described as a partially
liberalized "hybrid" 69 system where both public and private en tities participate in core generation,
transmission, distribution and retail activities. A lthough far from the government-dominated system
that characterized its first eight decades of operati on, the Government of Onta rio continues to play a
critical role in all aspects of the system's functioni ng. The key participants in this system and their
interactions are described in the following sections.
Generation
7.26 As of year-end 2010, there were approximate ly 34,700 MW of installed generation capacity
in Ontario 70. This capacity can be roughly separated into three groups of generators 71: (i) the
government-owned assets of OPG, which as already mentioned are the former generation assets of
Ontario Hydro; (ii) NUGs, which are private gene rators that entered into supply contracts with

65 A more detailed description and analysis of Ontario's competitive wholesale market opening
experience are set out below at paras. 7.285-7.292.
66 Ontario Energy Board, "History of the OEB" ("History of the OEB"), Exhibit CDA-17, p. 2.
67 Highlights of the Electricity Restructuring Act of 2004 , OEB website, ("Highlights of the Electricity
Restructuring Act of 2004 "), Exhibit JPN-9. See also Electricity Restructuring Act of 2004 , S.O. 2004, c. 23,
("Electricity Restructuring Act of 2004"), Exhibit CDA-18, Section 1(a).
68 Electricity Act of 1998 , Chapter 15, Schedule A, as amended, (" Electricity Act of 1998 "),
Exhibit JPN-5, Section 25.2.
69 Hogan Report, Exhibit CDA-2, p. 21.
70 Power Outlook: Winter 2010-2011, ("IESO Power Outlook"), Exhibit JPN-10.
71 Overview of Electricity Regulation in Canada, Blakes, ("Overview of Electricity Regulation in
Canada"), Exhibit JPN-7, pp. 11-13; and Quick Takes: Electricity Pricing, Issue 19, IESO website, ("Quick
Takes: Electricity Pricing"), Exhibit JPN-3, pp. 2-3.

Ontario Hydro in the 1980s and 1990s; and (iii) Independent Power Producers ("IPPs"), which
comprise all the other generators in Ontario that have started to operate since the wholesale market
was restructured. The IPPs include generators operating under the FIT Programme.
7.27 OPG is a wholly-owned corporation of the Gove rnment of Ontario that owns three nuclear,
five thermal, 65 hydroelectric a nd two windpower generation facilities
72. In 2010, the OPG produced
approximately 58% of all electricity generated in Ontario. The OPG's nuclear and base-load
hydroelectric generation facilities are classified as "OPG Regulated Assets". The prices received by
the OPG for electricity produced by these faciliti es are set by the Ontario Energy Board ("OEB"
73) on
the basis of the principle of "cost recovery and a margin of return" 74. For 2011, the return on equity
for the OPG's regulated assets was set by the OEB at 9.43% 75. However, payments to the OPG for the
supply of electricity from its other "unregulated" hydroelectric and coal-fired facilities, which account
for 8% of electricity generation in Ontario, are not guided by the principle of cost recovery and
margin. These assets receive the Hourly Ontario Electricity Price ("HOEP" 76), which is generally
lower than the regulated price obtained by the OPG's regulated assets. Canada explains that the OPG's
unregulated assets receive the HOEP because "most of these are state-owned facilities [that] are over
60 years old, and the capital costs of these facilities have largely been depreciated" 77. Similarly, the
OPG's coal-fired facilities either receive the HOEP because, again, they are facilities "whose costs
have largely been depreciated" or a price under co ntract with the OEFC which allows the OPG to
recover its costs78. The operations of these unregulated coal-fired assets will be shut down in 201479.
7.28 The remaining generators operating in Ontario account for 42% of electricity supply. Of
these, the IPPs, which generate around 40% of Ontari o's electricity supply, receive prices that are
negotiated or set under different types of OPA in itiatives and contracts including: the Clean Energy
Supply ("CES") contracts for natural gas 80; the Renewable Energy Supply ("RES") Requests for
Proposals I, II and III 81; the Hydroelectric Contract Initiativ e ("HCI") for grid-connected non-OPG-

72 The OPG was established under Part IV.1 of the Electricity Act of 1998 , Exhibit JPN-5. See also
Investor Relations, OPG website, ("OPG Investor Relations"), Exhibit JPN-14.
73 The nature of the OEB's operations and its relationship with the Government of Ontario are
discussed below at para. 7.42.
74 Canada's response to Panel question No. 26 (first set).
75OEB, "In the Matter of an Application by Ontario Power Generation Inc., Payment Amounts for
Prescribed Facilities for 2011 and 2012: Decision w ith Reasons", EB-2010-0008, 10 March 2011 ("OEB
Decision on Payment Amounts for Prescribed Facilities for 2011 and 2012"), Exhibit CDA-65, p.122. As of
1 March 2011, the OPG was paid CAD 5.59 cents and CA D 3.41 cents for each kWh of electricity that was
generated, respectively, by its regulated nuclear and hy droelectric assets. See, Japan's first written submission,
para. 36 and Payment Amounts Order (EB 2010-0008), Ontario Energy Board, 11 April 2011, ("OEB Payment
Amounts Order"), Exhibit JPN-19, pp. 4-5.
76 The HOEP is the price for electricity that is bought and sold through the operation of the IESO-
administered wholesale electricity market. The average HOEP received by the OPG's unregulated assets in 2010
was CAD 3.7 cents/kWh. OPG Fact Sheet: Year End 201 0, ("2010 OPG Fact Sheet"), Exhibit JPN-15. The
mechanisms used to determine the HOEP as well as its rele vance to the prices paid to generators for electricity
delivered to Ontario's electricity grid are discussed below at paras. 7.45-7.53.
77 Canada's response to Panel question No. 26 (first set).
78 The average HOEP received by these assets in 2010 was CAD 4.3 cents/kWh. 2010 OPG Fact Sheet,
Exhibit JPN-15.
79 Canada's response to Panel question No. 26 (first set).
80 Canada's first written submission (DS412), para. 31, referring to Direction from Dwight Duncan,
Minister of Energy, to Jan Carr, Chief Executive Officer of the OPA, 24 March 2005, ("Direction from Minister
of Energy to CEO of the OPA from March 2005"), Exhibit CDA-25.
81 Hogan Report, Exhibit CDA-2, pp. 30-32; and Progress Report on Electricity Supply: Second
Quarter 2011, Ontario Power Authority, ("OPA Progress Report: Second Quarter 2011"), Exhibit JPN-28, p. 1.

owned hydro facilities
82; the Combined Heat and Power ("CHP") Requests for Proposals I, II, III 83;
the Renewable Energy Standard Offer Programme ("RESOP")84; and the FIT Programme.
7.29 Under the CES and RES initiatives, the OPA awarded supply contracts through a
competitive bidding process which set prices for delivered electricity at the levels of the lowest
bids meeting the specified conditions. Prices paid to generators operating under the HCI and CHP
initiatives were negotiated with the OPA and, according to Canada, generally guided by the rates
paid under competitive contracts determined through a request for proposal
85. Under the RESOP,
the prices paid to solar PV generators are based primarily on the principle of cost recovery. For
non-solar RESOP generators, prices are based on those applied under the RES initiative. As
regards the FIT Programme, the price received by qualified generators is guided by the principle
of cost recovery and margin
86. The after tax rate of return on equity used to develop the FIT Price
Schedule in 2009 was 11%.
7.30 According to Japan, generators that do not operate under the RESOP or FIT Programme will
receive between CAD 5.0 cents/kWh to CAD 23.9 cents/kWh 87. Under the OPA's RESOP contracts,
non-solar generators are paid CAD 11.04 cents/k Wh with an additional payment of CAD 3.52
cents/kWh for electricity delivered during peak hour s; while solar PV generators are paid CAD 42.0
cents/kWh88. The FIT Price Schedule provides for paymen ts in a range from CAD 10.3 cents/kWh to
CAD 80.2 cents/kWh. Windpower projects receive either CAD 13.5 cents/kWh (onshore) or
CAD 19.0 cents/kWh (offshore) with a provision for 20% of the rate to "escalate" in accordance with
inflation, and solar PV projects receive from CAD 44.3 cents/kWh to CAD 80.2 cents/kWh
(depending on size and technology) with no escala tion. All of the OPA's contracted rates "are
generally higher than the [HOEP]"89.
7.31 Finally, the prices paid to NUGs for delivered electricity were negotiated 20 years ago and are
not based on the principle of "cost recovery and a ma rgin". Instead, the prices paid to these generators
are tied to the prices paid by large consumers of electricity 90. While precise prices for these contracts
are not publicly available 91, they are known to be "generally higher than HOEP" 92. The average

82 OPA, Hydroelectric Contract Initiative, OPA webs ite, ("OPA, Hydroelectri c Contract Initiative"),
Exhibit CDA-26.
83 OPA, Combined Heat and Power, OPA website, ("OPA, Combined Heat and Power"), Exhibit CDA-
27.
84 OPA, Standard Offer Program – Renewable Energy for Small Electricity Generators, An
Introductory Guide, ("OPA's Standard Offer Program – Renewable Energy for Small Electricity Generators"),
Exhibit JPN-206, p. 1.
85 Canada's response to Panel question No. 26 (first set).
86 Directive from Minister of Energy and Infrastructure to Ontario Power Authority Regarding FIT
Program, 24 September 2009, ("Minister's 2009 FIT Direction"), Exhibit JPN-102, p. 2.
87 Generation Procurement Cost Disclosure, OPA website, ("OPA Generation Procurement Cost
Disclosure"), Exhibit JPN-29. Prices as of March 2009.
88 OPA Generation Procurement Cost Disclosure, Exhibit JPN-29.
89 OPA Cash Flows from the Global Adjustment Mechanism, OPA, November 2010, ("OPA Cash
Flows: November 2010"), Exhibit JPN-23, p. 5.
90 Canada explains that prior to 2002, the prices paid to NUGs were known as the "Direct Customer
Rate", but has since become known as the "Direct Customer Rate new". Canada's response to Panel question
No. 26 (first set).
91 NUG contract rates are indexed to the "total ma rket cost" of electricity , which is comprised of
HOEP, the GA, and various service charges. See OEFC: Management of Power Supply Contracts, OEFC
website, ("OEFC: Management of Power Supply Contracts"), Exhibit JPN-22.
92 OPA Cash Flows: November 2010, Exhibit JPN-23, p. 5.

contract rate is estimated to be CAD 8.0 cents/kWh
93. According to Japan, significant NUG contracts
will begin to expire in 2012, with most contracts expiring by 201794.
Transmission and distribution
7.32 As already mentioned, electricity systems th at use integrated networks of high-voltage
transmission lines and relatively lower-voltage dist ribution lines deliver electricity from generating
stations to the general end-user. In Ontario, hi gh-voltage transmission lines carry electricity at
voltages above 50 kilovolts ("kV") and are used to move electricity over long distances from
generating stations to load or population centres to reduce power losses 95. Once the electricity nears a
distribution hub, voltage is reduced at a transforme r station and carried to customers over distribution
lines at voltages 50 kV and under96.
7.33 Generators typically connect to the transmission system or to the distribution system based on
their capacity. In particular, generators with cap acity greater than 10 MW (including large-capacity
FIT generators) typically connect to the transmis sion system, and generators with capacity of 10 MW
or less (including small-capacity FIT and microFIT generators) typically connect to the distribution
system97. Generators that connect to the transmission system must deliver electricity at voltages above
50 kV, while generators connected to the distributio n system must deliver electricity at voltages of
50 kV or less.
7.34 Transmission-connected generators register with the IESO 98, and connect to the high-voltage
transmission system, which is almost comp letely owned and ope rated by Hydro One 99. Hydro One
was established under Part IV of the Electricity Act of 1998 as a holding company with the objective
of owning and operating transmission systems a nd distribution systems through one or more
subsidiaries100. The company is wholly owned and cont rolled by the Government of Ontario 101. It is
also an "agency" of the Government of Ontario 102. A Hydro One subsidiary, Hydro One Networks

93 Ontario Electricity Market: The Good, the Bad, and the Ugly, Energy Exchange, 11 May 2010,
("Ontario Electricity Market: Energy Exchange"), Exhibit JPN-24.
94 OEFC: Management of Power Supply Contracts, Exhibit JPN-22.
95 Electricity Transmission and Distribution in Ontario – A Look Ahead, Ontario Ministry of Energy,
21 December 2004, ("Electricity Transmission and Distribution in Ontario"), Exhibit JPN-36, p. 4.
96 Electricity Transmission and Distribution in Ontario, Exhibit JPN-36, p. 4.
97 Ontario Power Authority, Feed-in Tariff Program: Program Overview, ("FIT Programme
Overview"), Exhibit JPN-37, p. 18; and Ontario Power Authority, Micro Feed-In Tariff Program: Program
Overview, ("microFIT Programme Overview"), Exhibit JPN-38, p. 8.
98 The IESO administers the flow of electricity acr oss Ontario's electricity grid. The basic corporate
structure of the IESO and the nature of its operations are discussed below at paras. 7.39-7.40.
99 Transmission-connected Generators, Exhibit JPN-39; and Quick Facts, Hydro One website, ("Hydro
One Quick Facts"), Exhibit JPN-40.
100 Electricity Act of 1998, Exhibit JPN-5, Section 48(1).
101 News Release: Hydro One Releases 2010 Year-End Financial Results Hydro One website, ("Hydro
One Releases 2010 Year-End Financial Results"), Exhibit JPN-41.
102 All Agencies List, Government of Ontario website, ("Government of Ontario: All Agencies List"),
Exhibit JPN-49. The Government of Ontario defines "agency" as "a provincial government organization: [i]
which is established by the government, but is not pa rt of a ministry; [ii] wh ich is accountable to the
government; [iii] to which the government appoints the majority of the appointees; and, [iv] to which the
government has assigned or delegated authority and responsibility, or which otherwise has statutory authority
and responsibility to perform a pub lic function or service". Agenci es: Boards, Commissions, Councils,
Authorities and Foundations, Government of Ontario website, ("Government of Ontario: Agencies"),
Exhibit JPN-51.

Inc., owns and operates 97% of the transmission system in Ontario
103. Four other private companies
own and operate the remaining 3%104.
7.35 Distribution-connected generators are connect ed to the distribution system via a local
distribution company ("LDC") 105. Hydro One owns and operates approximately one quarter of
Ontario's distribution system through a number of subsidiaries serving 1.3 million of a total 4.7
million customers, mostly in rural areas106. The remainder of Ontario's distribution system is presently
operated by 80 LDCs, 77 of which are owned by municipal governments107.
Regulation and administration
7.36 Ontario's electricity system is currently admi nistered and regulated by a number of public
entities. Among the most important, for the purpose the present disputes, are the OPA, the IESO, the
OEFC and the OEB.
- Ontario Power Authority

7.37 The OPA is an "agency"
108 of the Government of Ontario responsible for managing Ontario's
electricity supply and resources in order to meet its medium and long-term needs. The OPA was
established under the Electricity Restructuring Act of 2004 as "[a] corporation without share
capital"109, and operates its business and affairs on a not-for-profit basis 110. It falls within the
"legislative responsibility" of the Govern ment of Ontario's Ministry of Energy 111, and receives and
executes directives from the Minister of Energy 112. Among its statutory objectives are the goals of
engaging in:
[A]ctivities in support of the goal of ensuring adequate, reliable and secure electricity
supply and resources in Ontario; [and]
… activities to facilitate the diversifica tion of sources of electricity supply by
promoting the use of cleaner energy s ources and technologies, including alternative
energy sources and renewable energy sources; … 113
To achieve these and other objectives, the OPA was given the power to inter alia:

103 Our Subsidiaries, Hydro One website, ("Hydro One: Our Subsidiaries"), Exhibit JPN-43.
104 These companies are: Great Lakes Power; Canadi an Niagara Power; Five Nations Energy; and Cat
Lake Power Utility. IESO, The Power System, ("The Power System"), Exhibit JPN-44.
105 Distribution-connected Generato rs, Hydro One website, ("Distribution-connected Generators"),
Exhibit JPN-45; and Electricity Transmission and Distribution in Ontario, Exhibit JPN-36, p. 4.
106 Hydro One: Our Subsidiaries, Exhibit JPN-43 ; Delivering Safe, Reliable and Environmentally
Responsible Electricity to Ontarians, Electricity Di stributors Association, July 2010, ("EDA: Delivering
Electricity to Ontarians"), Exhibit JPN-46; and Overview of Electricity Regulation in Canada, Exhibit JPN-7,
pp. 11 and 16.
107 Find Your Local Utility, IESO website, ("LDCs op erating in Ontario"), Exhibit JPN-47; and EDA:
Delivering Electricity to Ontarians, Exhibit JPN-46.
108 Government of Ontario: All Agencies List, Exhibit JPN-49; and Agency Details, Ontario Power
Authority, Government of Ontario website, ("Agency Details, OPA"), Exhibit JPN-50.
109 Electricity Act of 1998, Exhibit JPN-5, Section 25.1(1).
110 Electricity Act of 1998, Exhibit JPN-5, Section 25.2(2).
111 About the Ministry of Energy, Ministry of Energy website, ("About the Ministry of Energy"),
Exhibit JPN-52.
112 Directives to OPA from Minister of Energy, OPA website, ("Directives to OPA from Minister of
Energy"), Exhibit JPN-55.
113 Electricity Act of 1998, Exhibit JPN-5, Sections 25.2(1)(c) and (d).

[E]nter into contracts relating to the procur ement of electricity supply and capacity in
or outside Ontario; [and]
… enter into contracts relating to the proc urement of electricity supply and capacity
using alternative energy sources or renewable energy sources to assist the
Government of Ontario in achieving goals in the development and use of alternative
or renewable energy technology and resources; …
114
7.38 The OPA's supply contracts provide guaranteed prices over a long-term period that is
typically 20 years 115. The OPA has used its contracting powers to secure actual and future electricity
supply from a variety of private and publicly-own ed generation facilities including those utilizing
nuclear, gas, hydro, wind, solar and bioenergy technologies 116. As of 30 June 2011, the OPA had
19,090 MW of electricity supply capacity under contract, of which 12,426 MW was in commercial
operation117.
- The Independent Electricity System Operator

7.39 The IESO is another "agency" of the Government of Ontario 118. Like the OPA, the IESO is a
not-for-profit "corporation without share capital" 119 and falls under the "legis lative responsibility" of
the Government of Ontario's Ministry of Energy 120. Similarly, pursuant to the Electricity Act of 1998,
the IESO is also controlled by the Government of Ontario.
7.40 The IESO administers Ontario's electricity markets and operates and maintains the IESO-
controlled grid to ensure real-time coordi nation between electricity supply and demand 121. In
particular, the IESO manages Ontario's wholesale elec tricity market (the "physical market"), bringing
together generators, traders, utilities, and large volume consumers 122. This not only involves the IESO
monitoring and directing the movement of electric ity across the IESO-controlled grid, but also the
settlement of payments between mark et participants. In this latter r espect, the IESO explains its role
as follows: "In the physical market, we collect funds from buyers and transfer funds to sellers. We do
not actually take title to energy, and we are, by law, revenue neutral" 123. The settlement process in the
physical market comprises four steps: (i) gathering and processing metering data to produce
settlement-ready data; (ii) using th e settlement-ready data to determ ine revenue owed to suppliers,

114 Electricity Act of 1998 , Exhibit JPN-5, Section 25.2(5)(c). This authority is repeated in
Section 25.32(1)(a); while Section 25.32(4.1) reveals that the "Minister may direct the OPA to undertake … any
other initiative or activity that relates to, (a) the procurem ent of electricity supply or capacity from renewable
energy sources…"
115 Canada's first written submission (DS412), para. 31.
116 The range of supply contracts that the OPA has entered into or taken ov er from the OEFC are
identified above at para. 7.28.
117 OPA Progress Report: Second Quarter 2011, Exhibit JPN-28, p. 1.
118 Government of Ontario: All Agencies List, Exhibit JPN-49; and Agency Details, Independent
Electricity System Operator, Government of Ontario website, ("Agency Details, IESO"), Exhibit JPN-57.
119 Electricity Act of 1998, Exhibit JPN-5, Sections 4(1) and 5(2).
120 About the IESO, IESO website, ("About the IESO"), Exhibit JPN-59; and About the Ministry of
Energy, Exhibit JPN-52.
121 Electricity Act of 1998, Exhibit JPN-5, Section 5.
122 IESO, Marketplace Training: Settlement Statem ents and Invoices, December 2010, ("IESO:
Settlement Statements and Invoices"), Exhibit JPN-62, p. 1. The "physical market" refers to the real-time
markets for the delivery and use of electricity. The IESO also administers a "financial market" for buying and
selling transmission rights.
123 IESO: Settlement Statements and Invoices, Exhibit JPN-62, p. 1.

costs for consumers, and various overhead costs payable by market participants; (iii) invoicing
participants; and (iv) transferring funds between energy purchasers and suppliers
124.
7.41 The IESO also oversees the reliable operation of the provincial transmission system 125, and
makes and approves the Market Rules, which defi ne the IESO-administered markets and describe
how they operate, and the Market Manuals, which provide detailed guidelines for various activities of
market participants126.
- Ontario Energy Board

7.42 The OEB is an "agency" 127 of the Government of Ontario that regulates Ontario's electricity
and natural gas sectors in conformity with the public interest 128. In the electricity sector, this
regulation is done through the OEB's authority to set transmission and distribution rates, as well as its
authority to license all market participants. As already noted 129, the OEB determines the prices at
which the "regulated" assets of OPG are to be paid for electricity delivered into Ontario's electricity
grid130. The OEB also maintains the Regulated Price Pl an ("RPP"), which establishes the prices paid
by retail consumers that purchase electricity from LDCs. As of 1 November 2011, the prices applied
under the RPP ranged from CAD 7.1 cents/kWh to C AD 8.3 cents/kWh for customers with standard
meters, and from CAD 6.2 cents/kWh to CAD 10. 8 cents/kWh for customers with smart meters 131.
Finally, among other functions of the OE B is its responsibility for establishing, inter alia, codes for
the transmission system, distribution system and retail settlement 132. The Transmission System Code
sets out the minimum standards that an electricity transmitter (i.e. Hydro One Networks Inc. and other
smaller transmission companies) must meet in designing, constructing, managing and operating its
transmission system 133. The Distribution System Code sets out the minimum obligations that a
licensed electricity distributor (i.e. LDCs, includi ng Hydro One subsidiaries) must comply with in
distributing electricity within the service area under its license 134. The Retail Settlement Code sets out
the minimum obligations that an electricity distri butor (i.e. LDCs, including Hydro One subsidiaries)
and retailer (i.e. entities that are licensed to re- sell electricity) must meet in conducting financial
settlements135.

124 IESO: Settlement Statements and Invoices, Exhib it JPN-62, p. 1. The processes used to settle
payments between wholesale market participants are explained in more detail below at paras. 7.60-7.63.
125 About the IESO, Exhibit JPN-59; and The Power Grid, IESO website, ("IESO: The Power Grid"),
Exhibit JPN-60.
126 Rules, Manuals and Forms, IESO website, ("IESO: Rules, Manuals and Forms"), Exhibit JPN-61.
127 Government of Ontario: All Agencies List, Exhibit JPN-49; and Agency Details, Ontario Energy
Board, Government of Ontario website, ("Agency Details, OEB"), Exhibit JPN-63.
128 What We Do, OEB website, ("OEB functions"), Exhibit JPN-64.
129 See above at para. 7.27.
130 Ontario Energy Board Act of 1998 , S.O. 1998, Chapter 15, Schedule B, as amended, (" Ontario
Energy Board Act of 1998 "), Exhibit JPN-6, Section 78.1; Ontario Regulation 53/05, Payments Under
Section 78.1 of the Act , 19 February 2008, as amended, (" Ontario Regulation 53/05, Payments Under
Section 78.1 of the Act "), Exhibit JPN-65, Section 6; and OPG – Payment Amounts, OEB website, ("OPG –
Payment Amounts"), Exhibit JPN-17.
131 Electricity Prices, OEB website, ("OEB: Electricity Prices"), Exhibit JPN-66; and Ontario Energy
Board, Electricity Prices for Consum ers on the Regulated Price Plan (April 2005 – November 2011), ("OEB:
Electricity Prices for Consumers on the RPP"), Exhibit JPN-67.
132 Rules, Codes, Guidelines and Forms, OEB website , ("OEB: Rules, Codes, Guidelines and Forms"),
Exhibit JPN-68.
133 Transmission System Code, Exhibit JPN-69.
134 Distribution System Code, Exhibit JPN-70.
135 Retail Settlement Code, Ontario Energy Board, 1 October 2011, ("Retail Settlement Code"),
Exhibit JPN-71.

- Ontario Electricity Financial Corporation

7.43 The OEFC was established by the Electricity Act of 1998 as a "corporation without share
capital"
136 and is another "agency" 137 of the Government of Ontario. The OEFC is mandated to, inter
alia, manage the contracts for the supply of electricity with NUGs 138. The OEFC's contracts with
NUGs were concluded prior to the establishment of the OPA in 2004. Significant OEFC contracts will
begin to expire in 2012 139. The OPA has been directed to pur sue new contracts with the NUGs upon
the expiry of the existing contracts with the O EFC or where an NUG and the OEFC have mutually
agreed to end an existing arrangement before its contractual expiry date140.
Wholesale prices and retail prices
- Wholesale prices

7.44 The price of electricity at the wholesale level va ries based on the cost of the electricity, which
is determined by adding together the "commod ity" charge (made up of the HOEP plus the Global
Adjustment141) and the costs associated with the services of transmission and market operation142. The
wholesale price is paid to the IESO by all whol esale consumers, including LDCs and large industrial
consumers directly connected to the IESO-controlled transmission grid.
The Hourly Ontario Energy Price

7.45 The Hourly Ontario Energy Price ("HOEP") is th e price for electricity sold at the wholesale
level that is established by the IESO through the operation of a computer-automated market
mechanism that uses supply and demand "stacks" to determine for every five-minute interval:
(i) which generators supply electricity and which consumers consume electricity; (ii) the amount of
electricity to be supplied and consumed; and (iii) the "market clearing price" ("MCP") and the HOEP
for that electricity.
7.46 The IESO "stack system" is established on the pr emise that certain generators are capable of
easily varying their electricity production while others are not, and likewise that certain consumers are
capable of easily varying their electricity cons umption while others are not. Generators and
consumers that can easily vary their electricity pr oduction or consumption are termed "dispatchable",
and receive "dispatch" instructions from the IESO every five minutes stating the quantity to be
supplied or consumed. Those gene rators and consumers that cannot easily vary their electricity
production or consumption are termed "non-dispatchable "; they do not receive "dispatch" instructions

136 Electricity Act of 1998, Exhibit JPN-5, Section 54(1).
137 Government of Ontario: All Agencies List, Exhibit JPN-49; and Agency Details, Ontario Electricity
Financial Corporation, Government of Ontario website, ("Agency Details, OEFC"), Exhibit JPN-72.
138 Ontario Electricity Financial Corporation – Mandate and Governing Legislation, OEFC website,
("OEFC: Mandate and Governing Legislation"), Exhibit JPN-73.
139 OPA Generation Procurement Update, OPA website, ("OPA Generation Procurement Update"),
Exhibit JPN-21, p. 15.
140 Directive from Minister of Energy to Ontario Power Authority Regarding Negotiating New
Contracts with Non-Utility Generators, 23 November 2 010, ("Minister's Directive Regarding Negotiating New
Contracts with NUGs"), Exhibit JPN-74.
141 The nature and operation of the Global Adjustment is explained below at paras. 7.54-7.56.
142 The latter charges include, inter alia, hourly uplift settlement charges and monthly uplift charges,
IESO and OPA administration fees, and wholesale transmission charges to LDCs and large consumers. A full
list of the other fees and charges can be found in A Guide to Electricity Charges – Market Participants, IESO
website, ("IESO Guide to Electricity Charges"), Exhibit JPN-1.

from the IESO, but rather their supply and demand is considered fixed and automatically placed by
the IESO at the front of the supply and demand stacks.
7.47 To determine which generators are to be physically dispatched, the IESO uses "security
constrained economic dispatch" software that em ploys an optimization algorithm to find the least
costly way of supplying forecast demand with available generation resources
143. The software also
utilizes a model of the transmission grid to discover whether this least-cost mix of generation might
overload the transmission network. If the software observes that any transmission constraints have
been violated, it iterates an optimization routine until it finds the least-cost solution that does not
violate any constraints. Non-dispatchable generators do not receive any instruction from the IESO, but
their expected supply is considered fixed and taken into account by the optimization routine.
7.48 Following the physical dispatch of electric ity, the MCP and HOEP are calculated without
taking into account transmission constraints 144. First the IESO creates a supply stack by ranking
supply offers in increasing order of cost, starting with non-dispatchable generators which are placed at
the beginning of the stack145. Non-dispatchable generators do not submit formal "offers" for electricity
they are willing to supply at every five-minute in terval, but must still submit schedules of production
(for self-scheduling generators) or forecasts of produc tion (for intermittent generators), so that the
IESO may take their quantity of supply into account at the beginning of the stack.
7.49 After taking into account such fixed supply, the IESO then turns to the variable supply
offered by dispatchable generators. Again, supply by dispatchable generators is considered variable
because such supply can be "dispatched on" or "d ispatched off" upon instructions from the IESO.
Dispatchable generators must submit price/quantity "offers" for every five minute interval. Although
many dispatchable generators will in fact receive re gulated or contracted prices for the electricity they
deliver into the system, they must nonetheless submit price offers to the IESO to indicate the quantity
they are willing to supply in a given five minut e interval. These price offers by dispatchable
generators serve as a dispatch signal – i.e. a mechan ism for the IESO to select electricity supply – and
not as the price that these generators actually re ceive. The IESO ranks the price offers from
dispatchable generators in ascending order to comple te its supply stack. This process is illustrated in
the following diagram submitted by Japan146.

143 Hogan Report, Exhibit CDA-2, p. 38.
144 Hogan Report, Exhibit CDA-2, p. 38.
145 Fixed supply also includes imports, i.e. supply that is scheduled to enter Ontario from another
jurisdiction, as imports are scheduled an hour ahead and will therefore flow for that entire hour regardless of the
rate. IESO, Marketplace Training: Introduction to Ontario' s Physical Markets, Octobe r 2010, ("IESO: Ontario's
Physical Markets"), Exhibit JPN-80, p. 20.
146 Japan's first written submission, Appendix II.

Diagram 1: IESO Supply Stack for Electricity

7.50 Similarly, the IESO stacks electricity de mand, beginning with non-dispatchable loads
followed by dispatchable loads. N on-dispatchable loads are those that simply draw electricity from
the grid as needed and therefore cannot easily va ry their consumption. Accordingly, they are
considered by the IESO as fixed demand 147 that is automatically placed at the beginning of the stack.
Non-dispatchable loads account for most of the energy consumed in Ontario. Dispatchable loads are
those that may vary their electricity consumption; therefore, they submit "bids" to the IESO stating
the price and quantity of the electricity they are willing to purchase. The IESO stacks these bids in
descending order according to the price bid. This process is illustrated in the following diagram
submitted by Japan148.

147 Fixed demand also includes exports (which, like imports, are fixed within the hour time window)
and losses from moving electricity through the transmission and distribution systems (which create a need for an
additional amount of energy). IESO: Ontario's Physical Markets, Exhibit JPN-80, p. 21.
148 Japan's first written submission, Appendix II.
Intermittent
Generators
(including FIT)
Self-
scheduling
Generators
Non-dispatchable
Generators Dispatchable Generators
(Nuclear, Large Gas,
Large Hydro, Coal)
Price
Quantity of Electricity Supplied

Diagram 2: IESO Demand Stack for Electricity

7.51 The IESO then sets the MCP for the five-minute interval at the intersection of these electricity
supply and demand stacks. The HOEP is calculated as an average of the twelve MCPs determined
over the course of a given hour. The weighted av erage HOEP based on Ontario demand for calendar
year 2010 was CAD 3.79 cents/kWh 149. The process used to arrive at the MCP is illustrated in the
following diagram submitted by Japan150.

Diagram 3: Determination of Market Clearing Price by the IESO

149 IESO Monthly Average Prices, Average Weighted Hourly Price, ("IESO: Average Weighted Hourly
Price"), Exhibit JPN-83.
150 Japan's first written submission, Appendix II.

Price
Quantity of Electricity
MCP

Non-Dispatchable
Loads
Dispatchable Loads
Quantity of Electricity Demanded
Price

7.52 The MCP/HOEP is an "unconstrained" price in that its calculation does not consider
transmission constraints. As a result, it may not accord with dispatch orders, which do take
transmission constraints into account. From time to time the IESO may compel a generator to run
despite the fact that the MCP is below the genera tor's offer price. On other occasions the IESO may
prevent a generator from operating even though its bid was below the MCP. To align the economic
incentives of generators with those the system opera tor, the former are paid Congestion Management
Settlement Credits whenever they are dispatched uneconomically
151.
7.53 All generators operating throug h the IESO-administered wholesale market will receive the
MCP/HOEP for the electricity they deliver into the system 152. In addition, for those generators that
have additional arrangements – i.e. generators that receive regulated prices set by the OEB or
contracted prices set by the OEFC or OPA – the pri ces they receive are subject to an adjustment to
reconcile the difference between the MCP/HOEP and th e generator's regulated or contracted price.
This is done through the Global Adjustment153.
The Global Adjustment

7.54 The purpose of the Global Adjustment ("GA") is to ensure that payments by consumers
reflect the amounts payable to generators under regul ated or contracted rates that differ from the
market rate (i.e. MCP/HOEP). Statutory authority for the GA is found in Section 25.33 of the
Electricity Act of 1998 154. Part 5.5, Sections 1.6.7 and 1.6.11 of the IESO Market Manual provide
detailed instructions on how the GA is to be determined and settled 155. In particular, the GA is a
monthly amount set to reflect the difference between MCP/HOEP and: (i) regulated prices paid to
OPG's regulated assets; (ii) contracted prices paid to NUGs that have contracts with the OEFC; and
(iii) contracted prices paid to generators that have contracts with the OPA156.
7.55 Accordingly, the GA is inversely related to HOEP – i.e. an increase in the HOEP means a
decrease in the GA, and vice versa 157. Where the MCP/HOEP is below the fixed (i.e. regulated or
contracted) prices, the GA will be a positive numb er representing the amount payable to generators
(and the amount charged to consumers); conversely, where the MCP/HOEP exceeds the fixed prices,
the GA will be a negative number representing a charge to generators
158 (and a credit to consumers).
GA payments are affected whenever new electric ity supply starts, with the GA increasing with each

151 Hogan Report, Exhibit CDA-2, pp. 40-41.
152 IESO, Market Rules for the Ontario Electricity Market, 12 October 2011, ("IESO: Market Rules"),
Exhibit JPN-79, Chapters 7 and 9; General IESO Fre quently Asked Questions, IESO website, ("General IESO
FAQ"), Exhibit JPN-81 ("Dispatchable facilities will be settled at [the] five-minute [market clearing] price, non-
dispatchable wholesale consumers will be settled using a weighted hourly average of these five-minute prices");
and IESO: Ontario's Physical Markets, Exhibit JPN-80, p. 23.
153 IESO Market Manual Part 5.5: Physical Markets Settlement Statements, Issue 44.0,
12 October 2011, ("IESO Market Manual Part 5.5"), Exhibit JPN-82, Sections 1.6.7 and 1.6.11.
154 Electricity Act of 1998 , Exhibit JPN-5, Section 25.33(1). ("Th e IESO shall, through its billing and
settlement systems, make adjustments in accordance with the regul ations that ensure that, over time, payments
by classes of market participants in Ontario that are prescribed by regulation reflect amounts paid, in accordance
with the regulations, to generators, distributors, the OPA and the Financial Corporation, whether the amounts
are determined under the market rules or under sections 78.1 to 78.5 of the Ontario Energy Board Act of 1998".)
155 IESO Market Manual Part 5.5, Exhibit JPN-82, Sections 1.6.7 and 1.6.11.
156 See IESO Guide to Electricity Charges, Exhi bit JPN-1; and Global Adjustment, IESO website,
("IESO: Global Adjustment"), Exhibit JPN-75.
157 OPA Cash Flows: November 2010, Exhibit JPN-23, p. 6.
158 See IESO Guide to Electricity Charges, Exhibit JPN-1.

new contract for conservation and supply th at establishes rates in excess of MCP/HOEP
159. The GA
has been consistently positive since at least 2009160.
7.56 The total GA owed to generators is allocated to consumers pro-rata based on the amount of
electricity (kWh) they consume, regardless of which generators are supplying electricity at the time of
their consumption161. The total GA will largely be calculated by summing all adjustments to the prices
owed to electricity generators, and then pro -rating this amount across consumers' purchases of
electricity162. Since its introduction in 2005, the GA has b een collected from all Ontario consumers on
this basis. However, beginning in January 2011 the largest industrial consumers with average monthly
demand of over 5 MW have paid the GA based on th eir share of consumption during the five highest
demand hours of the year. Other consumers con tinue to be charged on the original basis 163. The
average GA for 2010 was CAD 2.718 cents/kWh164.
- Retail prices

7.57 Prices paid by retail consumers are generally determined by adding to the total of
MCP/HOEP, GA, and other fees and charges, an add itional distribution charge to cover the cost of
delivering electricity to the consumer. Retail consumers either purchase electricity based on use from
their LDCs, or they enter into contracts for electric ity with an LDC or licensed electricity retailer. The
former retail consumers pay for the electri city commodity according to the OEB's RPP 165, and the
latter retail consumers pay for the electricity commod ity according to a retail c ontract. In 2010, there
were 77 private-sector electricity retailers in Ontario that sold "contracts to businesses and
consumers"166. There are currently 45 licensed electricity re tailers that compete with LDCs in their
respective service areas167.
7.58 RPP prices are paid by residential and small business consumers that purchase electricity
from their LDCs based on use 168. Although these RPP prices are paid to LDCs, they are reviewed and
set by the OEB every six months, specifically for the periods 1 May to 31 October and 1 November to

159 OPA Cash Flows: November 2010, Exhibit JPN-23, p. 6.
160 Global Adjustment Archive, IESO website, ("Global Adjustment Archive"), Exhibit JPN-11.
161 IESO, HST Guide for IESO Transactions, Issue 26.0, 12 October 2011, ("IESO: HST Guide for
IESO Transactions"), Exhibit JPN-84, Section 8.11, p. 35.
162 IESO: HST Guide for IESO Transactions, Exhibit JPN-84, p. 35.
163 See Ontario Regulation 398/10, made under the Electricity Act, 1998 (Exhibit EU-16), ss. 6 and 7.
164 Global Adjustment Archive, Exhibit JPN-11.
165 A retail consumer seeking to purchase electricity through the RPP will establish an account with the
local distributor to be connected to its distribution system, and by doing so, the consumer assumes responsibility
for taking or using the electricity de livered by the LDC. RPP customers do no t have a formal contract with the
LDC; pursuant to Section 6.1.2 of the Distribution System Code, however, "[a] distributor has an implied
contract with any customer that is connected to the distributor's distri bution system and receives distribution
services from the distributor. The terms of the implied contract are embedded in the distributor's Conditions of
Service, the Rate Handbook, the distributor's rate sc hedules, the Distributor's licence and the Distribution
System Code". Distribution System Code, Exhibit JPN-70, Section 6.1.2; and Conditions of Service, Hydro One
website, ("Hydro One: Conditions of Service"), Exhibit JPN-87.
166 Ontario's Long-Term Energy Plan, Exhibit CDA-6, p. 63.
167 Electricity Act of 1998 , Exhibit JPN-5, Section 29; Retail Settlement Code, Exhibit JPN-71,
Sections 1.1, 2.7, 10.1, and 12; and OEB Licensed El ectricity Retailers (http://www.ontarioenergyboard.ca/html
/licences/all_issuedlicences_read.cfm?showtype=Electricity%20Retailer) referred to in Retail Contracts, IESO
website, ("IESO: Retail Contracts"), Exhibit JPN-90.
168 IESO: Global Adjustment, Exhibit JPN-75; and IESO, LDC Settlement of RPP and Global
Adjustment, 28 September 2009, ("LDC Settlement"), Exhibit JPN-88, p. 9.

30 April each year, and are based upon forecasts of the HOEP and the GA
169. The GA does not appear
as a separate item on an RPP customer's electricity b ill because it is directly included in the rates set
by the OEB 170. RPP prices vary according to the type of meter used by the customer 171. Effective
1 November 2011, the prices for customers with conventional meters (tier pricing) were
CAD 7.1 cents/kWh (low-tier) and CAD 8.3 cents/kWh (high-tier) 172; and the prices for customers
with smart meters (time-of-use pricing) were CAD 6.2 cents/kWh (off-peak), CAD 9.2 cents/kWh
(mid-peak), and CAD 10.8 cents/kWh (on-peak)173.
7.59 Retail consumers not under the RPP may enter into a retail contract with an LDC or licensed
electricity retailer, paying a contracted price for electricity for a fixed period, plus the GA174.
Settlement of payments to generators
7.60 The IESO is responsible for settling the "physical " electricity market in which participants
buy and sell energy175. Settlement of the physical market involves a four-step process of gathering and
processing data, reconciling the markets, i nvoicing participants, and transferring funds 176. During this
process, the IESO will collect electricity payments from consumers and distribute these funds to
electricity generators.
7.61 In general, the MCP/HOEP portion of the payments it receives from consumers will be sent
directly to generators, while the GA portion will be transferred to generators through the OPA or on
behalf of the OPA. However, when the MCP/HO EP is negative, the IESO will receive a MCP/HOEP
payment from generators. Accordingly, the IESO wi ll determine the amount of money to be received
or paid by a market participant based on the MCP/HOEP during its hours of participation in the IESO-
administered markets177.
7.62 The IESO will collect the GA from consumers and distribute it to generators through the OPA
or on behalf of the OPA pursuant to Part 5.5, Sections 1.6.7 and 1.6.11 of the IESO Market Manual178.
The settlement rules for the GA are complex and va ry according to the different components of the
GA and the class of market participant. However, typically, monthly invoices are issued by the IESO
indicating the amounts to be paid or received by the market participant and the payment due date 179,

169 Ontario Energy Board, Regulated Price Plan Price Report: November 1, 2011 to October 31, 2012,
17 October 2011, ("RPP Price Report: 1 November 2011 to 31 October 2012"), Exhibit JPN-89, p. 1.
170 IESO: Global Adjustment, Exhibit JPN-75.
171 RPP Price Report: 1 November 2011 to 31 October 2012, Exhibit JPN-89, pp. 3-5.
172 OEB: Electricity Prices, Exhibit JPN-66. The conventional meter plan sets a lower fixed price for
energy consumption up to a monthly threshold amount, with consumption above this level at a higher price. As
of 1 November 2011, customers pay CAD 7.1 cents/kWh for a lower tier (which ranges from 600 kWh to
1,000 kWh per month depending on the season and the type of customer) and CAD 8.3 cents/kWh for an upper
tier (all consumption per month above the lower tier). See also IESO Market Manual Part 5.5, Exhibit JPN-82,
Section 1.6.7.7.
173 See OEB: Electricity Prices, Ex hibit JPN-66. The smart meter plan establishes prices for energy
based on the time that energy is consumed. As of 1 November 2011, customers pay CAD 6.2 cents/kWh off-
peak, CAD 9.2 cents/kWh mid-peak, and CAD 10.8 cents/kWh on-peak. See also IESO Market Manual
Part 5.5, Exhibit JPN-82, Section 1.6.7.7.
174 IESO: Global Adjustment, Exhibit JPN-75.
175 IESO: Settlement Statements and Invoices, Exhibit JPN-62, p. 1.
176 IESO: Settlement Statements and Invoices, Exhibit JPN-62, p. 1.
177 IESO: Market Rules, Exhibit JPN-79, Chapter 7, Section 8.3; and Chapter 9, Sections 3.1.1, 3.1.3,
3.3, 6.10.2, and 6.11.1.
178 IESO Market Manual Part 5.5, Exhibit JPN-82, Sections 1.6.7 and 1.6.11.
179 See IESO: Market Rules, Exhibit JPN-79, Chapter 9, Section 6.10.2.

and market participants must pay these invoices by the specified due date
180. These invoices will
include a line item for the settlement differen ce between the MCP/HOEP and the regulated or
contracted prices received by certain generators, i.e. the GA 181. If the GA is positive, it is collected
from the consumer; if negative, the IESO will pa y the consumer the GA from its settlement clearing
account182. The IESO then sends part of the total GA coll ected to the OPA to settle contract payments
with transmission-connected generators, and uses th e remainder to settle contract payments with
distribution-connected generators on behalf of the OPA183.
7.63 Although the settlement process for transmissi on-connected generators operating under the
FIT Programme is the same as that described ab ove, distribution-connected generators operating
under the FIT Programme will receive their full contr act payments (i.e. the HOEP plus GA) from the
LDC to which they are connected. The relevant LDC will then seek reimbursement of the GA from
the OPA via the IESO184.
(iv) The FIT Programme and the FIT and microFIT Contracts185
7.64 The FIT Programme can be generally described as a scheme implemented by the Government
of Ontario and its agencies through which generators of electricity, produced from certain forms of
renewable energy, are paid a guaranteed price per kWh of electricity delivered into the Ontario
electricity system under 20-year or 40-year contracts with the OPA. In the case of windpower projects
having a capacity to produce electricity that is great er than 10 kW, and solar projects with a capacity
of up to 10MW, a "Minimum Required Domestic Content Level" must be satisfied in the
development and construction of the qualifying electricity generation facility.
7.65 The FIT Programme was formally launched by the OPA on 1 October 2009 pursuant to the
Direction of the Ontario Minister of Energy and Infrastructure 186 acting under the authority of the
Electricity Act of 1998 187, as amended by the Green Energy and Green Economy Act of 2009188. The
FIT Programme is the third in a series of initiatives adopted by the Government of Ontario since 2004
to increase the supply of electricity produced from renewable sources of energy into the Ontario
electricity system in order to diversify its supply-mix and help replace coal-fired facilities 189. As

180 See IESO: Market Rules, Exhibit JPN-79, Chapter 9, Section 6.11.1.
181 OPA, 2006 Business Plan, 30 September 2005, ("OPA's 2006 Business Plan"), Exhibit JPN-92,
p. 26.
182 See IESO: Market Rules, Exhibit JPN-79, Chapter 9, Section 6.11.
183 See IESO Market Manual Part 5.5, Exhibit JPN-82, Section 1.6.7.8. IESO Guide to Online Data
Submission via the IESO Portal, March 2011, ("IESO Guide to Online Data Submission"), Exhibit JPN-93,
pp. 20-21.
184 The settlement process for payments made to generators operating under the FIT Programme is
discussed further at paras. 7.204-7.207.
185 A more detailed description and analysis of the FIT Programme and the FIT and microFIT Contracts
are set out below at paras. 7.195-7.248, where we evaluate the merits of the parties' arguments concerning the
proper factual and legal characterization of the challenged measures under Article 1.1(a) of the
SCM Agreement.
186 Minister's 2009 FIT Direction, Exhibit JPN-102.
187 Electricity Act of 1998 , Exhibit JPN-5, Sections 25.32 and 25.35, as amended by the Green Energy
and Green Economy Act of 2009, S.O. 2009, c. 12, Schedule B, ("Green Energy Act of 2009"), Exhibit JPN-101.
188 Green Energy Act of 2009, Exhibit JPN-101, Sections 5(2) and 7.
189 See, for example, Ontario's Long-Term Energy Plan, Exhibit CDA-6, pp. 7, 9-10, 19, and 31. The
two earlier initiatives were the Request for Proposals for Renewable Energy Supply I (2004), II (2005) and III
(2008), and the Renewable Energy Standard Offer Program (2006). See Ontario Ministry of Energy, Request
for Proposals for 300 MW of Renewable Energy Supply (RES I), issued 24 June 2004, ("RES I"), Exhibit CDA-
52; Ontario Ministry of Energy, Request for Proposals for 1,000 MW of Renewable Energy Supply (RES II),
issued 17 June 2005, ("RES II"), Exhibit CDA-53; Ontario Ministry of Energy, Request for Proposals for

described by the Ontario Minister of Energy and In frastructure, its four objectives are to: (i) "increase
capacity of renewable energy supply to ensure adequate generation and reduce emissions";
(ii) "introduce a simpler method to procure and develop generating capacity from renewable sources
of energy"; (iii) "enable new green industries through new investment and job creation"; and
(iv) "provide incentives for investment in renewable energy technologies"
190.
7.66 Participation in the FIT Programme is open to facilities located in Ontario that generate
electricity exclusively from one or more of the following sources of renewable energy: wind, solar
photovoltaic ("PV"), renewable bioma ss, biogas, landfill gas or waterpower 191. The Programme is
divided into two streams: (i) the FIT stream - for projects with a capacity to produce electricity that
exceeds 10 kW, but is no more than 10 MW for solar PV projects or 50 MW in the case of
waterpower projects; and (ii) the microFIT stream - for projects having a capacity to produce up to
10 kW of electricity (typically small household, farm or business generation projects)
192.
7.67 The FIT Programme is administered by the OPA and is implemented through the application
of a standard set of rules, standard contracts a nd, for each class of generation technology, standard
pricing. The standard rules are found in a number of instruments, with the most specific being the FIT
Rules and the microFIT Rules developed by the OPA. Other relevant rules are found in the IESO
Market Rules, the IESO Market Manual, the Transmission System Code, the Distribution System
Code, and the Retail Settlement Code.
7.68 Only projects that satisfy all of the specific eligibility requirements set out in the FIT and
microFIT Rules
193, and that can be connected to the Ontario electricity system 194, will be offered a
Contract, and thereby permitted to participate in th e Programme. By entering into a FIT or microFIT
Contract, a qualifying entity will be required to inter alia build, operate and maintain the approved
renewable energy electricity generation facility, in accordance with all relevant laws and regulations,
and deliver the produced electricity into the Ontario electricity system. In return for performing these
and other contractual obligations, the same entity will be remunerated, over the term of the particular

approximately 500 MW of Renewable Energy Supply (RES III), issued 22 August 2008, ("RES III"), Exhibit
CDA-54; and Ontario Power Authority, Joint Report to the Minister of Energy Recommendations on a Standard
Offer Program for Small Generators connected to a Dist ribution System (RESOP), 17 March 2006, ("RESOP"),
Exhibit CDA-55.
190 Minister's 2009 FIT Direction, Exhibit JPN-102, p. 1. More specifically, the OPA explains that the
Programme was developed:
[T]o encourage and promote greater use of renewable energy sources including wind,
waterpower, Renewable Biomass, Bio-gas, la ndfill gas and solar (PV) for electricity
generating projects in Ontario. The fundamental objective of the FIT Program, in conjunction
with the Green Energy and Green Economy Ac t, 2009 is to facilitate the increased
development of Renewable Generating Facilities of varying sizes, technologies and
configurations via a standardized, open and fa ir process.(Ontario Po wer Authority, Feed-in
Tariff Programme Rules, Version 1.5.1, 15 Ju ly 2011, ("FIT Rules"), Exhibit JPN-119,
Section 1.1).
191 FIT Rules, Exhibit JPN-119, Section 2.1(a); and Ontario Power Authority, Feed-in Tariff
Appendix 1, Standard Definitions, Version 1.5.1, 15 July 2011, ("FIT Standard Definitions"), Exhibit JPN-135,
Definitions Nos. 215 and 216.
192 FIT Rules, Exhibit JPN-119, Section 2.1(a)(iii) ; and Ontario Power Authority, microFIT Rules,
Version 1.6.1, 10 August 2011, ("microFIT Rules"), Exhibit JPN-157, Section 2.1(a)(iv).
193 FIT Rules, Exhibit JPN-119, Sections 2-3; and microFIT Rules, Exhibit JPN-157, Sections 2-3.
194 In particular, for FIT projects, the OPA must fi rst confirm that there ar e resources available to
connect the proposed renewable energy electricity facility to the relevant transmission or distribution network.
FIT Rules, Exhibit JPN-119, Sections 5.2 ("Transmission Availability Test") and 5.3 ("Distribution Availability
Test"). Similarly, for microFIT projects, a Connectio n Agreement between a Local Distribution Company and
the microFIT facility must exist and be operational. microFIT Rules, Exhibit JPN-157, Section 4.1.

Contract, in accordance with a form ula that is based on a standard Contract Price established by the
OPA
195. This is done through the application of sim ilar mechanisms to tho se used to settle the
payments to generators supplying electricity into the Ontario electricity system under non-FIT
contracts196. Thus, while the OPA has ultimate contractual liability for all FIT and microFIT Contract
Payments197, in practice, the actual payments are made by a combination of the OPA, the IESO and
relevant LDCs.
5. Order of analysis
7.69 The complainants claim that Canada acts in consistently with its obligations under the
SCM Agreement, the TRIMs Agreement and th e GATT 1994 by reason of the "Minimum Required
Domestic Content Level" adopted by the Provi nce of Ontario under the FIT Programme, and
implemented through the FIT and microFIT Contr acts. According to the complainants, the Panel
should evaluate the merits of these claims by fi rst focusing on those made under the SCM Agreement.
The complainants justify this submission by arguing that of the three covered agreements that are
relied upon in these disputes, the SCM Agreement d eals most specifically and in detail with the
measures at issue, including with resp ect to the nature of the remedy th at is available in the event of a
finding of violation. Canada, on the other hand, considers that the Panel should first address the
complainants' claims under Article III:4 of the GATT 1994 because, in its view, this provision deals
most specifically and in detail with the focus of the complainants' challenge, namely, the "Minimum
Required Domestic Content Level".
7.70 We note that the complainants assert, and Cana da does not contest, that the measures at issue
are trade-related investment measures affecting im ports of renewable energy generation equipment
and components. This suggests that, compared w ith the SCM Agreement and Article III:4 of the
GATT 1994, it is the TRIMs Agreement that deal s most directly, specifically and in detail 198, with the
aspects of the FIT Programme, and the FIT and microFIT Contracts, that are at the centre of the
complainants' concerns. In this light, we will commence our evaluation of the complainants' claims by
focusing on those made under the TRIMs Agreement. However, it is apparent from the terms of
Article 2.1 of the TRIMs Agreement that, in undertaking this evaluation 199, we will also necessarily
have to come to a view about the merits of the complainants' allegations concerning the consistency of
the challenged measures with Article III:4 of th e GATT 1994. Thus, in the section that follows we
will simultaneously evaluate the merits of both of the complainants' claims under Article 2.1 of the
TRIMs Agreement and Article III:4 of the GATT 1994.

195 FIT Rules, Exhibit JPN-119, Sections 7.1(a), 7.1(b), and 10.1(a); FIT Price Schedule, 3 June 2011,
("2011 FIT Price Schedule"), Exhibit JPN-30; FIT Contract, Exhibit JPN-127, Article 3.1 and Exhibit B; and
microFIT Price Schedule, 13 August 2010, ("2010 microFIT Price Schedule"), Exhibit JPN-31.
196 FIT Rules, Exhibit JPN-119, Sections 8.1 and 8.2; and FIT Contract, Exhibit JPN-127, Articles 4.2-
4.4 and Exhibit B.
197 FIT Rules, Exhibit JPN-119, Section 6.3(a).
198 Appellate Body Report, EC – Bananas III, para. 204.
199 The text of Article 2.1 of the TRIMs Agreement is set out and discussed below, at paras. 7.114-
7.121.

B.
WHETHER CANADA ACTS INCONSISTENTLY WITH ARTICLE 2.1 OF THE TRIMS AGREEMENT AND
ARTICLE III:4 OF THE GATT 1994
1. Arguments of the parties
(a) Japan
7.71 Japan claims that the FIT Programme, and the FIT and microFIT Contracts are (i) trade-
related investment measures inconsistent with Canada's obligation under Article 2.1 of the
TRIMs Agreement; and (ii) measures inconsistent wi th Canada's national tr eatment obligation under
Article III:4 of the GATT 1994.
7.72 Japan argues that the FIT Programme, and the FIT and microFIT Contracts, are TRIMs
falling within the scope of the TRIMs Agreemen t because, through the operation of the prescribed
domestic content requirements, they (i) "encourage investment in the production of renewable energy
and associated equipment in Ontario" 200; and (ii) by definition, favour the use of domestic over
imported products (i.e. wind and solar energy generation equipment) and are thereby "trade-
related"201. Japan recalls that a TRIM will be in violation of Article 2.1 of the TRIMs Agreement
when it is inconsistent with Artic le III or Article XI of the GATT 1994 202. Thus, to the extent they are
inconsistent with Article III:4 of the GATT 1994, Japan submits that the FIT Programme, and the FIT
and microFIT Contracts, must also be inconsis tent with Article 2.1 of the TRIMs Agreement 203. In
any case, Japan submits that the challenged measures' inconsistency with Article 2.1 is also apparent
from the terms of Paragraph 1(a) in the Annex to the TRIMs Agreement, which describe one category
of TRIMs that is deemed to be inconsistent with the obligation of national treatment found in
Article III:4 of the GATT 1994204.
7.73 Japan also argues that the FIT Programme, and FIT and microFIT Contracts, are inconsistent
with Article III:4 of the GATT 1994 because they impose requirements on renewable energy
generators affecting the internal sale, purchase, and use of renewable energy generation equipment,
and accord imported equipment treatment less favourable than like products of Ontario origin205. First,
renewable energy generation equipment manufactur ed domestically in Ontario and imported from
Japan are "like products" because they are in a directly competitive situation in the market and there is
no substantial difference between domestic and imported equipment in terms of their physical
properties, end-uses, consumer perceptions, and ta riff classifications. Second, the domestic content
rules of the FIT Programme and Contracts are "requi rements" in that they are conditions with which
FIT generators voluntarily comply in order to obtain an advantage. Third, the domestic content rules
of the FIT Programme and Contracts "affect" the "internal" "sale", "purchase" or "use" of renewable
energy equipment in that they provide an incentive to wind and solar PV energy generators in Ontario
to choose renewable energy equipment manufactured in Ontario. Finally, the domestic content rules
of the FIT Programme and Contracts accord less fa vourable treatment to imported renewable energy
generation equipment than that accorded to like pr oducts of Ontario origin because they modify the
conditions of competition to the detriment of imported products206.

200 Japan's first written submission, para. 298, citing the Minister's FIT Directive of 24 September 2009,
which refers to new investment in renewable energy technologies. See Minister's 2009 FIT Direction,
Exhibit JPN-102, p. 1.
201 Japan's first written submission, para. 299, citing the Panel Report, Indonesia – Autos, para. 14.82.
202 Japan's first written submission, para. 296.
203 Japan's first written submission, paras. 295 and 300.
204 Japan's first written submission, paras. 295 and 301-302.
205 Japan's first written submission, para. 262.
206 Japan's first written submission, paras. 262-283.

7.74 In this connection, Japan submits that Article III:8(a) of the GATT 1994 does not apply to the
measures at issue base on the following three main arguments.
7.75 First, Japan argues that FIT Contracts are not "procurement by governmental agencies of
products purchased". In Japan's view, the OPA do es not "purchase" electricity "for governmental
purposes". Moreover, according to Japan, even if it were possible to conclude that products were
"purchased" under the FIT Contracts, such purch ases could not amount to "procurement" by
governmental agencies, under Article III:8(a) of the GATT 1994, in the light of the proper
interpretation of the term "procurement" under customary international law rules of treaty
interpretation
207.
7.76 Second, Japan argues that the FIT Contracts are not entered into "for governmental purposes".
Properly interpreted in accordance with customary rul es of treaty interpretation, Japan is of the view
that the expression "for governmental purposes" means for governmental use, consumption or benefit.
Japan contends that the Government of Ontario do es not use, consume or benefit from the electricity
delivered pursuant to FIT Contracts208.
7.77 Finally, Japan submits that the FIT Contracts are entered into "with a view to commercial
resale". Properly interpreted, Japan argues that the expression "with a view to commercial resale"
means with a view to being sold into the stream of commerce or trade, as opposed to being used or
consumed by the government. Because the electric ity delivered pursuant to the FIT Contracts is
injected into the transmission grid and delivered al most instantaneously to consumers in Ontario for
their use, Japan maintains that to the extent that el ectricity may be considered to have been purchased
by the Government of Ontario under FIT Contracts, that electricity is purchased with a view to
commercial resale209.
(b) European Union
7.78 The European Union argues that the FIT Programme, and the FIT and microFIT Contracts are
(i) trade-related investment measures that are incons istent with Article 2.1 of the TRIMs Agreement,
in conjunction with paragraph 1(a) of its Annex; and (ii) measures in consistent with Article III:4 of
the GATT 1994210.
7.79 According to the European Union, the challe nged measures are TRIMs because: (i) they aim
at encouraging the development of a local manuf acturing capability for equipment and components
for renewable energy generation facilities in Ontario 211; and (ii) the "Minimum Required Domestic
Content Level" affects trade in wind and solar energy generation equipment and components, as it

207 Japan's opening statement at the first meeting of the Panel, paras. 49-58; second written submission,
paras. 54 and 60; and opening statement at the second meeting of the Panel, paras. 27-28 and 32.
208 Japan's first written submission, fn. 457; opening statement at the first meeting of the Panel,
paras. 53 and 69-75; second written submission, para. 61; opening statement at the second meeting of the Panel,
para. 33; and response to Panel question No. 47 (second set).
209 Japan's opening statement at the first meeting of the Panel, paras. 78-85; second written submission,
paras. 64-71; opening statement at the second meeting of the Panel, paras. 36-39; and response to Panel question
No. 48 (second set).
210 European Union's first written submission, paras. 98-106.
211 European Union's first written submission, para. 100, referring to the evidence submitted by Japan
in its first written submission, paras. 121-128, and the objectives mentioned by the Minister's Directive to
the OPA. (Minister's 2009 FIT Direction, Exhibit JPN-102, pp. 1-2).

creates an incentive to purchase or use Ontario's products to the detriment of imported like
products
212.
7.80 The European Union submits that it is possible to establish that a TRIM is inconsistent with
Article 2.1 of the TRIMs Agreement by either: (i) adducing evidence to demons trate the existence of
any of the situations described in the Illustrative List of TRIMs; or (ii) otherwise demonstrating a
violation of Article III:4 of the GATT 1994 on the basis of the terms of that provision 213. The
European Union makes both these arguments in th e present disputes. Thus, the European Union
argues that the challenged measures are inconsistent with Article 2.1 of the TRIMs Agreement when
read in the light of Article 2.2 of the TRIMs Agreement and Paragraph 1(a) of its Annex, because in
its view they are TRIMs requiring the purchase or use by entities of equipment and components for
renewable generation facilities of Ontari o origin or from a source in Ontario
214. In addition, the
European Union argues that the FIT Programme and its related contracts are inconsistent with the
terms of Article III:4 of the GATT 1994 because, through the operation of the "Minimum Required
Domestic Content Level", they accord less fa vourable treatment to imported equipment and
components for renewable energy generation facilities than that accorded to like products originating
in Ontario
215. In this regard, the European Union agre es with, and adopts as its own, the arguments
advanced by Japan as to why th e measures at issue are inconsis tent with Article III:4 of the
GATT 1994216.
7.81 The European Union submits that Article III:8 of the GATT 1994 does not apply to the
measures at issue on the basis of four main arguments.
7.82 First, the European Union argues that Article III:8(a) of the GATT 1994 is not applicable
because Article III:8(a) only covers requirements di rectly relating to the product purchased by the
government. In the case under consideration, the Eu ropean Union submits that the product allegedly
procured by the Government of Ontario is electri city produced by FIT generators. However, the
"Minimum Required Domestic Content Level" at issu e relates to different products, i.e. renewable
energy generation equipment and components, the s ourcing of which does not add anything to and is
completely disconnected from the basic nature of the product procured or purchased, electricity. Thus,
the European Union argues that the "Minimum Re quired Domestic Content Level" does not "govern"
the alleged procurement of electricity because it is not related to the subject matter of the alleged
procurement217.
7.83 Second, the European Union argues that Articl e III:8(a) of the GATT 1994 is not applicable
because the FIT Programme does not involve a "pur chase" or "procurement". According to the
European Union, the term "procurement" in Article III:8(a) means "acquisition". In its view, the OPA
does not acquire electricity from the FIT gene rators under the FIT Programme. Rather, the
European Union asserts that the OPA facilitates th e production of electricity from renewable sources
of energy and directs the FIT generators to supply their electricity into the grid218.
7.84 Third, the European Union argues that Articl e III:8(a) of the GATT 1994 is not applicable
because even assuming that the measures involve a " purchase" or "procurement" of electricity, such

212 European Union's first written submission, paras. 101-102.
213 European Union's first written submission, paras. 151 and 156-157.
214 European Union's first written submission, paras. 141 and 153.
215 European Unions' first written submission, paras. 156 and 158-162.
216 European Union's first written submission, paras. 106 and 158.
217 European Union's response to Panel question No. 22 (first set); and opening statement at the first
218 European Union's first written submission, paras. 57 and 115; response to Panel question No. 49
(first set); and opening statement at the second meeting of the Panel, para. 12.

conduct is not undertaken "for g overnmental purposes". For the European Union, the key question in
this respect is whether the electricity purchased by the OPA is acquired with a view to covering the
needs of the Government of Ontario. According to the European Union, the fact that the OPA
purchases electricity from FIT generators to secure a sufficient and reliable supply of electricity from
clean sources, in pursuit of a public policy, is irrele vant since the electricity is neither used by nor
covers the needs of the OPA or the Government of Ontario to perform any of its public service
functions
219.
7.85 Finally, the European Union argues that Article III:8(a) of the GATT 1994 is not applicable
because any purchase of electricity through the FIT Pr ogramme is "with a view to commercial resale
and/or with a view to be used in the production of goods for commercial sale" 220. In this respect, the
European Union submits that a "commercial r esale" in the sense of Article III:8(a) does not
necessarily require that the product in question be resold for a profit. Rather, the European Union
submits that Article III:8(a) merely requires that the purchased product is sold, traded or introduced
into the market for that particular product. The European Union asserts that the electricity produced
by the FIT generators is introduced into the market and sold to all consumers at commercial prices.
Moreover, the European Union also argues that since the electricity produced by the FIT generators is
fed into the grid, the purchased product is used in the production of goods for commercial sale221.
(c) Canada
7.86 Canada argues that the FIT Programme is not su bject to the obligations of Article III of the
GATT 1994 because the laws and requirements that create and implement the FIT Programme are
laws and requirements that govern the procurement of renewable electricity for the governmental
purpose of securing electricity supply for Ontario co nsumers from clean sources, and not with a view
to commercial resale or with a view to use in the production of goods for commercial sale 222. Thus,
Canada states, considering that the FIT Programme is not subject to Article III of the GATT 1994, it
cannot be inconsistent with Article 2.1 of the TRIMs Agreement223.
7.87 In support of its view that Article III:8(a) of the GATT 1994 applies to the measures at issue,
Canada submits four main arguments.
7.88 First, Canada contends the challenged measu res are law, regulations or requirements
governing the procurement of electricity. Ca nada considers that Section 25.35 of the Electricity Act of
1998; the Ministerial Direction; and the FIT and microFIT Rules and Contracts are laws or
requirements for the purposes of Article III:8(a). In addition, Canada argues that the scope of
Article III:8(a) is not confined to the purchase of products that are the focus of a claim under
Article III of the GATT 1994 224. Canada contends that its understanding is supported by the

219 European Union's first written submission, paras. 116-132; opening statement at the first meeting of
the Panel, paras. 36-37; second written submission, paras. 125-133; opening statement at the second meeting of
the Panel, paras. 41-49; and responses to Panel questions Nos. 46 and 47 (second set).
220 European Unions' first written submission, para. 133.
221 European Union's first written submission, paras. 128-132; opening statement at the first meeting of
the Panel, paras. 38-40; second written submission, paras. 134-149; opening statement at the second meeting of
the Panel, paras. 50-59; and response to Panel question No. 48 (second set).
222 Canada's first written submission (DS412), para. 67.
223 Canada's first written submission (DS412), para. 101.
opening statement at the first meeting of the Panel, paras. 10 and 46-48; response to Panel question No. 22
(first set); and opening statement at the second meeting of the Panel, paras. 62 and 69.

Government Procurement Agreement ("GP A") and academic literature on the GPA
225. Finally,
Canada states that nothing in the wording of Ar ticle III:8(a) prescribes that the "domestic content
requirement" must "govern" the procurement. Altern atively, Canada argues that the domestic content
requirement does "govern" the OPA's procurement of wind and solar electricity226.
7.89 Second, Canada asserts the OPA is procuring el ectricity. Canada points out that there is no
dispute between the parties that the OPA is a governmental agency 227. Canada also explains that
several sections of the challenged measures expres sly state that the OPA is procuring renewable
electricity228. In any case, Canada argues that the ordinary meaning of "procurement" is "[t]he action
of obtaining something; acquisition […]" 229. Canada contends that this meaning is confirmed by its
context in Article III:8(a), since it refers to the pr ocurement of products "purchased", and the ordinary
meaning of "purchase" is "[t]o acquire in exchange for payment in money or an equivalent; to buy"230.
Thus, according to Canada, "Article III:8(a) appli es to the governmental acquisition of products by
payment"231. Canada contends that the OPA purchases renewable electricity for the following reasons:
(i) the challenged measures state that the OPA is purchasing renewable electricity; (ii) the OPA only
pays money in exchange for renewable electricity that is produced and delivered into the grid 232;
(iii) the OPA also purchases the by-products from th e production of renewable electricity, including
carbon credits and "future contract related products"233; and (iv) the OPA pays sales tax under the FIT
Contracts, which in Ontario is paid by the acquirer of goods and services234.
7.90 Third, Canada argues that the ordinary mean ing of a "purchase for governmental purposes" is
a purchase for an aim of the government. The OPA's purchase of renewable electricity furthers the
aim of the Government of Ontario to secure the supply of adequate and reliable electricity from clean
sources235.

225 Canada's opening statement at the first meeting of the Panel, paras. 49-51; and response to Panel
question No. 22 (first set).
226 Canada's opening statement at the second meeting of the Panel, paras. 64-65.
227 Canada's first written submission (DS412), para. 70.
228 Canada's first written submission (D S412), paras. 71-75. See also Canada's first written submission
(DS426), para. 16; opening statement at the first meeting of the Panel, para. 29; closing oral statement at the
first meeting of the Panel, para. 3; second written submission, para. 19; and opening statement at the second
229 Canada's first written submission (DS412), para. 76, quoting the OED Online Dictionary, definition
of "procurement" (OED Online Dictionary, definition of "procurement", ("OED Online Dictionary:
procurement"), Exhibit CDA-39). See also Canada's second written submission, para. 24.
230 Canada's first written submission (DS412), para. 76, quoting the OED Online Dictionary, definition
of "purchase" (OED Online Dictionary, definition of "purchase", ("OED Online Dictionary: purchase"),
Exhibit CDA-40).
231 Canada's first written submission (DS412), para. 77. See also, Canada's response to Panel question
No. 56 (first set).
232 Canada's first written submission (D S412), paras. 77-80. See also Canada's first written submission
(DS426), para. 16; second written submission, paras. 16 and 43; opening statement at the second meeting of the
Panel, para. 20; and closing statement at the second meeting of the Panel, para. 2.
233 Canada's first written submission (DS426), para. 16; opening statement at the first meeting of the
Panel, paras. 17-20, referring to FIT Contract, Exhibit JPN-127, Article 2.10(a); and second written submission,
para. 15.
234 Canada's first written submission (DS426), para . 17, referring to Canada Revenue Agency, How
GST/HST works, ("How GST/HST Works"), Exhibit CDA-56; FIT Contract, Exhibit JPN-127, Article 3.5; and
FIT Rules, Exhibit JPN-119, Section 7.3(d). See also Canada's opening statement at the first meeting of the
Panel, para. 21.
235 Canada's first written submission (DS412), para s. 86-88; first written submission (DS426),
paras. 23-34; closing statement at the first meeting of the Panel, para. 9; response to Panel question No. 28 (first

7.91 Finally, Canada submits that OPA's purchase of renewable electricity is not with a view to
commercial resale as it is not a purchase with an ai m to resell for profit. Similarly, the OPA is not
purchasing renewable electricity with a view to using the product in the production of goods for
commercial sale as neither the OPA nor any other part of the Government of Ontario uses the
electricity to produce goods
236.
2. Arguments of the third parties
(a) Australia
7.92 Referring to the term "governmental purposes" in Article III:8(a) of the GATT 1994,
Australia notes that the ordinary meaning of the term "purpose" may be "practical advantage or
use"237. Although this ordinary meaning may not be as common as the one suggested by Canada,
Australia submits that it appears to be more a ppropriate when one considers the reference to " les
besoins" in the French version of Article III:8(a) of the GATT 1994. With respect to the term "with a
view to commercial resale", Australia notes that the ordinary meaning of "commercial" is "concerned
with or engaged in 'commerce'; commerce is defined as the activity of buying and selling" 238. In
Australia's view, the concept of profit in both de finitions is a secondary consideration. Australia
considers that to interpret "with a view to commerc ial resale" as meaning a purchase with an aim to
resell for profit would be an overly narrow definition – one that would expand the possible
exemptions to the national treatment obligations in Article III. Australia submits that Article III:8(a)
was not intended to cover the situation where a gove rnment enters into contracts for the supply or
purchase of electricity at fixed prices, which it then sells on a market for general consumption239.
(b) Brazil
7.93 Brazil considers that the complainants unduly limit the scope of the expression "for
governmental purposes" in Article III:8(a) of the GATT 1994, by maintaining that it only covers
purchases for the government's own use or benefit. In Brazil's view, the complainants' interpretation
seems to indicate that the sole purpose of the govern ment is to provide for the maintenance and the
regular functioning of its bureaucracy, disregarding the fact that state bureaucracy is only a means to
achieve a myriad of ends, as defined by each so ciety. Brazil contends that the purpose of a
government cannot be conceptually construed, and can only be understood on a case-by-case basis
and informed by the specific function performed by a given government in each sector of the
economy. However, Brazil considers that the defi nition of "governmental purposes" cannot be as
broad as suggested by Canada, as it would significan tly undermine the scope of the national treatment
obligation set out in Article III of the GATT 1994240.

set); second written submission, paras. 50-67; opening statem ent at the second meeting of the Panel, paras. 33-
46; closing statement at the second meeting of the Panel, paras. 5-12; and response to Panel question No. 47
(second set).
236 Canada's first written submission (DS412), para s. 90-97; first written submission (DS426),
paras. 35-47; opening statement at the first meeting of the Panel, paras. 54-72; response to Panel question
No. 25(a) (first set); second written su bmission, paras. 68-83; opening stat ement at the second meeting of the
Panel, paras. 47-59; closing statement at the second meet ing of the Panel, paras. 13-16; and response to Panel
question No. 48 (second set).
237 Australia's third-party submission (DS412), para. 20; and third-party submission (DS426), para. 20.
238 Australia's third-party submission (DS412), para. 30; and third-party submission (DS426), para. 30.
239 Australia's third-party submission (DS412), paras. 16-35; third-party submission (DS426),
paras. 16-35; and third-party statement (DS412 and DS426), paras. 21-24.
240 Brazil's third-party statement (DS412 and DS426), paras. 2-8.

(c) China
7.94 China considers that the terms "purchased for governmental purposes" in Article III:8(a) of
the GATT 1994 mean that (i) the government is the re ason for the purchase; (ii) the government shall
benefit from the result or effect of the purchase; or (iii) the government is the aim or the end of the
purchase. In these disputes, China considers that the electricity purchased by the OPA is not for
governmental purposes because it is injected into the grid for sale to end consumers. Moreover, China
notes that the electricity sold to business operato rs will be used in the production of goods for
commercial sale
241.
(d) European Union (in WT/DS412)
7.95 As a third party in WT/DS412, the European Union considers that the renewable energy
generation equipment manufactured in Ontario and the one imported from Japan and from other
countries are "like products" in the sense of Article III:4 of the GATT 1994. The European Union
contends that the contested measures are "requireme nts" in the sense of Article III:4, and that it may
be reasonably expected that the challenged m easures will adversely modify the conditions of
competition between the domestic and imported like products. The European Union recalls that the
FIT Programme creates incentives among Ontario-based wind and solar PV energy generators to use
renewable energy generation equipment produced within Ontario. With regards to Article III:8(a), the
European Union considers that there is no "procureme nt" in the sense of this provision; and even if
the Government of Ontario did procure electricity, it would be with a view to commercial resale or
use in the production of goods for commercial sale
242.
7.96 Turning to the claims under the TRIMs Agreem ent, the European Union underlines that the
TRIMs Agreement is a fully fledged agreement, wh ich applies independently to Article III of the
GATT 1994. The European Union also notes that the measures at issue would be covered by
Paragraph 1(a) of the Annex to the TRIMs Ag reement. A finding that a measure falls under
Paragraph 1(a) results, in and of itself, in a finding of violation of Article 2.1 of the
TRIMs Agreement and, consequently, in a finding of violation of Article III:4 of the GATT 1994.
Thus, in the European Union's view, the Panel need not examine first whether there is a violation of
Article III:4 of the GATT 1994 to then conclude th at there is a violation of Article 2.1 of the
TRIMs Agreement243.
(e) Japan (in WT/DS426)
7.97 As a third party in WT/DS426, Japan conte nds that the characterization and treatment
provided under domestic law cannot have any bear ing on the application or interpretation of
provisions of the covered agreements, or more ge nerally on the determination of whether any WTO
obligation has been violated. For similar reasons, Jap an considers that the manner in which a Member
chooses to administer its tax system has little rele vance for whether a particular transaction is a
"procurement" or "purchase" for purposes of Article III:8(a) of the GATT 1994244.

241 China's third-party submission (DS412), paras. 8-22; and third-party statement (DS412 and DS426),
paras. 2-3.
242 European Union's third-party submission (DS412), paras. 27-42.
243 European Union's third-party submission (DS412), paras. 43-47.
244 Japan's third-party submission (DS412), paras. 13-15.

(f) Korea
7.98 Korea considers that the text of Article III: 8(a) of the GATT 1994, when read as a whole,
suggest that the meaning of "procurement" is not completely identical to the meaning of "purchase",
since this provision uses both terms in the same se ntence in a manner that suggests that there may be
types of procurement that do not involve purch ases. The term "procurement" would appear to
encompass any form of governmental acquisition, including but not limited to "purchase"
245.
7.99 Moreover, Korea considers that electric power is not a material object, but a form of energy
typically generated when coils of wire are turned in a magnetic field to cause a quantity of electrons
(the electric current) to flow as a result of a difference in potential (the voltage). Korea contends that it
remains open whether, in the circumstances of these disputes, (i) electricity should be considered a
"product", and (ii) a definition of "product" (refe rring to renewable energy from wind, solar PV, or
other "clean" alternatives) that considers the met hods used to produce the electric power would be
appropriate where the definition is intended to achieve important environmental objectives246.
7.100 Turning to the expression "governmental pur poses", Korea contends that Canada's
interpretation of "governmental purposes" would re sult in all procurements made by a government
being considered "for governmental purposes", which would render this expression inutile. In
addition, Korea notes that Canada appears to sugg est that "governmental purposes" can be discerned
from the societal interest in the alleged aim of the governmental acti on. Korea considers that Canada
is correct in stressing the importance of adequate and reliable electrical energy supplies to the public
welfare. However, Korea notes that the same descrip tion could be applied to almost any other field of
economic activity. Thus, Korea contends that a t est under Article III:8(a) that requires only some
connection of the purchase to some matter releva nt to public welfare would appear to be
inadequate247.
(g) Mexico
7.101 Mexico considers that when a subsidy con tingent upon the use of domestic over imported
goods is found to be prohibited under the SCM Ag reement, a violation of the national treatment
obligation under Article III of the GATT 1994 w ill necessarily exist. In addition, measures
conditioned upon the use of domestic goods constitute investment measures, and being inconsistent
with Article III of the GATT 1994, will also automati cally result in a violation of Article 2.1 of the
TRIMs Agreement. However, Mexico considers th at in the case of governmental purchases measures
will be excluded from the scope of Article III of the GATT 1994 and Article 2.1 of the
TRIMs Agreement248.
(h) Norway
7.102 Norway agrees with the complainants that the crucial issue in these disputes is whether the
OPA is actually "purchasing" electricity, or whether it functions solely as a "clearing house". In this
respect, Norway argues that it is not sufficient to consider whether the OPA's activities are referred to
as "procurement". With regards to Canada's in terpretation of "governmental purposes", Norway
considers that it would in practice include every single purchase made by a government. This would

245 Korea's third-party submission (DS412), paras. 16-18.
246 Korea's third-party submission (DS412), paras. 22-26.
247 Korea's third-party submission (DS412), paras. 31-34.
248 Mexico's third-party submission (DS412), paras. 16-19; and third-party submission (DS426),
paras. 16-19.

result in the terms "governmental purposes" being made inutile, and also allow Members to
circumvent the obligation included in Article III:4 of the GATT 1994
249.
(i) United States
7.103 With respect to the "likeness" analysis under Article III:4 of the GATT 1994, the
United States recalls that several panels have fo und significant the fact that a measure distinguishes
between a domestic and an imported product solely on the basis of origin 250. Turning to
Article III:8(a), the United States addresses the following three issues.
7.104 First, the United States contends that Canada has improperly assigned an "object and
purpose" to Article III:8(a) of the GATT 1994. The Un ited States recalls that Article 31 of the Vienna
Convention provides that the interpretation of treat y provisions shall be informed by the object and
purpose of the treaty. Thus, according to the United States, the proper identification of the object and
purpose of an agreement is not derived by reviewing an isolated subsection of that agreement251.
7.105 Second, the United States argues that Canada ha s employed an overly broad interpretation of
"governmental purposes" in Article III:8(a). The Un ited States argues that Canada's interpretation
renders meaningless the phrase "purchase for govern mental purposes" because of two reasons:
(i) nearly every government procurement is "directed by" a government document of some sort; and
(ii) Canada's interpretation is circular, as it is difficult to conceive of a situation in which a
government would say it is not acting with a governmental aim in mind
252.
7.106 Finally, the United States considers that Canada has incorrectly identified the relevant product
for purposes of Article III:8(a). The particular pur chases to which the FIT local content requirement
apply – sales of equipment by manufacturers to priv ate power generators – appear to differ in nature
and by contract from the purported government procur ement of electricity that is at the core of
Canada's Article III:8(a) defence. In other words, although Canada consistently identifies electricity as
the "product" covered by Article III:8(a), it seeks to justify local content requirements that apply to
equipment. According to the United States, it does not follow that a purported government
procurement of one class of goods under Article III:8( a) justifies a local content requirement covering
private purchases of a different class of goods. The United States considers that the interpretation
advanced by Canada would extend the scope of Ar ticle III:8(a) well beyond its ordinary meaning,
effectively broadening it to permit a government pr ocurement of a good to be used to leverage all
manner of domestic content requirements253.
3. Evaluation by the Panel
(a) Introduction
7.107 In the sections that follow, we begin our evaluati on of the merits of the parties' arguments by
first determining whether the complainants have established that the challenged measures amount to
TRIMs within the meaning of Article 1 of the TR IMs Agreement. We subsequently examine whether
the complainants have also demonstrated that the FIT Programme, and the FIT and microFIT
Contracts, are inconsistent with Article 2.1 of th e TRIMs Agreement by virtue of being inconsistent
with the national treatment obligation provided fo r in Article III:4 of the GATT 1994. In this

249 Norway's third-party statement (DS412 and DS426), paras. 2-6.
250 United States' third-party submission (DS412 and DS426), paras. 3-5.
251 United States' third-party submission (DS412 and DS426), paras. 6-12.
252 United States' third-party submission (DS412 and DS426), paras. 13-15.
253 United States' third-party submission (DS412 and DS426), paras. 16-20.

connection, the key question that we will have to resolve, given Canada's line of defence
254, is
whether Article III:8(a) of the GATT 1994 may a pply to remove the challenged measures from the
scope of Article III:4 of the GATT 1994, and thereby also the disciplines found in Article 2.1 of the
TRIMs Agreement.
(b) Whether the measures at issue are trade-related investment measures
7.108 Article 1 of the TRIMs Agreement stipulates that it "applies to investment measures related to
trade in goods only". However, the TRIMs Agreem ent does not define trade-related investment
measures ("TRIMs"). The complainants argue that the measures at issue are TRIMs because they
(i) encourage investment in the local production of renewable energy generation equipment and
components in Ontario; and (ii) affect trade in wind and solar energy generation equipment by
favouring Ontario products over imported products
255. Canada does not advance any arguments on
whether the challenged measures constitute TRIMs.
7.109 With respect to whether the challenged me asures constitute "investment" measures, the
evidence before us reveals that, as argued by th e complainants, one of the aims of the FIT
Programme, and the FIT and microFIT Contracts, is to encourage investment in the local production
of equipment associated with renewable energy ge neration in the Province of Ontario. Thus, for
example, the objectives of the FIT Programme in clude enabling "new green industries through new
investment and job creation" and the provision of "incentives for investment in renewable energy
technologies"256.
7.110 The evidence before us also discloses that the FIT Programme has been a key factor
motivating a number of manufacturers to establish facilities for the production of renewable energy
equipment in Ontario. For instance, Siemens has re ported that by becoming a local manufacturer of
inverters for solar PV technology, "Siemens will allow its customers inv esting in commercial and
solar farm applications to meet the 'minimum re quired domestic level' requirement by the Ontario
government's feed-in tariff (FIT) program" 257. In addition, another company, Automation Tooling
Systems, "announced plans in October 2009 to manufacture solar modules in Ontario to take
advantage of the province's Green Energy Act, which guarantees a higher price for solar energy
through its feed-in tariff program"
258. Similarly, two other firms, ENERCON and Niagara Region
Wind Corporation, have signed a contract pursuan t to which ENERCON will supply and maintain
wind turbines for the Niagara Region Wind Power Project. It has been reported that "[a] key
component of this agreement is ENERCON's comm itment to build a manufacturing facility in the
Niagara Region … [which] will allow NRWC to fulf ill its domestic content requirements, as required
by the Ontario Power Authority" 259. The new facility "would be the first of its kind in the North
American market and for ENERCON outside of its home market of Germany"260.

254 We note that apart from Canada's reliance on Article III:8(a) of the GATT 1994, Canada has not
advanced any specific arguments to reject the complain ants' claims under Article 2.1 of the TRIMs Agreement
and Article III:4 of the GATT 1994.
255 Japan's first written submission, paras. 298-299; and European Union's first written submission,
paras. 100-102; and 151-152.
256 Minister's 2009 FIT Direction, Exhibit JPN-102, p. 1.
257 Siemens invests in Solar Inverter Manufacturing in Canada, Siemens Canada, Press Release,
3 June 2010, ("Siemens invests in Canada"), Exhibit JPN-112.
258 Chuck Howitt, "ATS lifts curtain on green wing", Waterloo Region Record , 26 November 2010,
("ATS lifts curtain on green wing"), Exhibit JPN-113.
259 "Niagara Region Wind Corporation selects turbine manufacturer", Canada NewsWire,
27 September 2011, ("Niagara Region Wind Corporation selects turbine manufacturer"), Exhibit JPN-117.
260 Niagara Region Wind Corporation selects turbine manufacturer, Exhibit JPN-117.

7.111 As to whether the measures are "trade-related ", we note that the FIT Programme imposes a
"Minimum Required Domestic Content Level" on el ectricity generators utilising solar PV and
windpower technologies that, for the reasons we explain elsewhere in this section
261, compels them to
purchase and use certain types of renewable energy generation equipment sourced in Ontario in the
design and construction of their facilities. To this extent, we see the "Minimum Required Domestic
Content Level" that is at issue in these disput es to be not unlike the domestic content requirements
challenged in Indonesia – Autos , where the panel opined that "by definition, [domestic content
requirements] always favour the use of domestic products over imported products, and therefore
affect trade"262.
7.112 Thus, based on the foregoing analysis, we fi nd that the FIT Programme, and the FIT and
microFIT Contracts, to the extent they envisag e and impose a "Minimum Required Domestic Content
Level", constitute TRIMs within the meaning of Article 1 of the TRIMs Agreement. Having
established that the challenged measures amount to TR IMs, we now turn to examine whether they are
inconsistent with Article 2.1 of the TRIMs Agreement.
(c) Whether the measures at issue are inconsistent with Article 2.1 of the TRIMs Agreement
because they are allegedly inconsistent with Article III:4 of the GATT 1994
7.113 As already noted, we see the core issue that is contested in these disputes in relation to the
complainants' claims under the TR IMs Agreement and the GATT 1994 to be whether the challenged
measures are outside the scope of application of Article III:4 of the GATT 1994 by virtue of the
operation of Article III:8(a) of the GATT 1994 263. In this regard, the key questions that we must
resolve are: (i) whether Paragraph 1(a) of the Illu strative List in the Annex to the TRIMs Agreement
precludes the application of Article III:8(a) to the challenged measures; and (ii) to the extent that
Paragraph 1(a) of the Illustrative List does not rem ove the possibility of a pplying Article III:8(a) to
the challenged measures, whether those measures are of the kind described in Article III:8(a). We now
address each of these questions in turn.

261 The "Minimum Required Domestic Content Level" is described and examined in more detail below
at paras. 7.158-7.165.
263 We agree with the European Union's characteriza tion of Article III:8(a) of the GATT 1994 as a
"scope" provision rather than an exception. (European Union's response to Panel Question No. 14 (first set); and
opening statement at the second meeting of the Panel, para. 29). We recall that the Appellate Body in China –
Raw Materials considered the different nature of Articles XI:2 and XX of the GATT 1994, and stated that:
Members can resort to Article XX of the GATT 1994 as an exception to justify measures that
would otherwise be inconsistent with their GATT obligations. By contrast, Article XI:2
provides that the general elimination of quantitative restrictions shall not extend to the items
listed under subparagraphs (a) and (c) of that provision. This language seems to indicate that
the scope of the obligation not to impose quantitative restrictions itself is limited by
Article XI:2(a). Accordingly, where the requirem ents of Article XI:2(a) are met, there would
be no scope for the application of Article XX, because no obligations exists. (Appellate Body
We note that, pursuant to Article III:8(a), the provisions of Article III shall not apply to laws, regulations or
requirements governing certain type of procurement. Thus, consistent with the Appellate Body's view relating to
the relationship between Articles XI:2 and XX of the GATT 1994, the language in Article III:8(a) seems to
indicate that the scope of the national treatment obligation under Article III is limited by Article III:8(a). In other
words, if a measure is covered by Article III:8(a), it will not fall within the scope of Article III of the
GATT 1994.

(i) Whether the challenged measures are outside th e scope of Article III:4 of the GATT 1994 by
virtue of the operation of Article III:8(a) of the GATT 1994
Whether Paragraph 1(a) of the Illustrative List in the Annex to the TRIMs Agreement precludes the
application of Article III:8(a) of the GATT 1994 to the challenged measures
7.114 We begin by setting out and reviewing the rele vant legal provisions, which stipulate as
follows:
Article 2
National Treatment and Quantitative Restrictions
1. Without prejudice to other rights and obligations under GATT 1994, no
Member shall apply any TRIM that is incons istent with the provisions of Article III
or Article XI of GATT 1994.
2. An illustrative list of TRIMs that ar e inconsistent with the obligation of
national treatment provided for in paragr aph 4 of Article III of GATT 1994 and the
obligation of general elimination of qua ntitative restrictions provided for in
paragraph 1 of Article XI of GATT 1994 is contained in the Annex to this
Agreement.
7.115 Paragraph 1(a) of Illustrative List in the Annex to the TRIMs Agreement provides:
1. TRIMs that are inconsistent with the obligation of national treatment
provided for in paragraph 4 of Article III of GATT 1994 include those which are
mandatory or enforceable under domestic law or under administrative rulings, or
compliance with which is necessary to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or
from any domestic source, whether specified in terms of particular
products, in terms of volume or valu e of products, or in terms of a
proportion of volume or value of its local production; or …
7.116 Article III:8(a) of the GATT 1994 stipulates that:
The provisions of this Article shall not a pply to laws, regulations or requirements
governing the procurement by governmental agencies of products purchased for
governmental purposes and not with a view to commercial resale or with a view to
use in the production of goods for commercial sale.
7.117 The text of Article 2.1 of the TRIMs Agre ement imposes an obligation on Members not to
apply any TRIM that is inconsistent with the "pr ovisions of Article III or Article XI of GATT 1994".
The "provisions of Article III" include the nationa l treatment obligation found in Article III:4. It
follows that any measure found to be inconsistent w ith Article III:4 of the GATT 1994 that is also a
TRIM will be incompatible with Article 2.1 of the TRIMs Agreement.
7.118 It is important to note that the "provisions of Article III" that are referred to in Article 2.1 of
the TRIMs Agreement include Article III:8(a). This provision precludes the application of the
obligations set out in Article III to "laws, regula tions or requirements governing" certain types of

government procurement
264. Consequently, any government procur ement transactions covered by the
terms of Article III:8(a) of the GATT 1994 will be removed from the scope of the obligations set out
in Article III, including Article III:4. Thus, where a particular TRIM involves the same kind of
government procurement transactions described in Article III:8(a), it cannot be found to be
inconsistent with the obligation in Article 2.1 of the TRIMs Agreement.
7.119 Article 2.2 of the TRIMs Agreement does not impose any obligations on Members, but rather
informs the interpretation of the prohibition set out in Article 2.1. In particular, Article 2.2 explains
that the TRIMs described in the Illustrative List of the Annex to the TRIMs Agreement are to be
considered inconsistent with Members' specific obligations under Articles III:4 and XI:1 of the
GATT 1994. It does not follow, however, that TR IMs having the same ch aracteristics as those
described in Paragraph 1(a) of the Illustrative List must be automatically found to be inconsistent with
Article III:4 of the GATT 1994 when they would otherwise be cover ed by the terms of Article III:8(a)
of the GATT 1994 . Such a reading of Article 2.2 would be inconsistent with the clear terms of
Article 2.1, which explicitly state that there will be a violation of Article 2.1 of the TRIMs Agreement
whenever a measure is inconsistent with Ar ticle III of the GATT 1994. This refers to the whole of
Article III, including Article III:8(a).
7.120 In our view, the European Union's argument that Paragraph 1(a) of the Illustrative List, read
in conjunction with Article 2.2 of the TRIMs Agreem ent, may be determinative of whether a measure
violates Article III:4 of the GATT 1994, and thereby al so Article 2.1 of the TRIMs Agreement, does
not reflect the proper sequence of the legal analysis that is envisaged under Articles 2.1 and 2.2 of the
TRIMs Agreement. We consider this sequence to be the following. Where in a particular case it is
found that the national treatment obligation in Ar ticle III:4 applies to a challenged measure, the
Illustrative List may be used to determine whether the challenged measure is inconsistent with that
obligation through the operation of Article 2.1 of the TRIMs Agreement. Where such a measure has
the characteristics that are described in Paragraph 1( a) of the Illustrative List, it follows from the clear
language of this provision that it will be in viol ation of Article III:4 of the GATT 1994, and thereby
also Article 2.1 of the TRIMs Agreement. Given the la nguage of Article 2.1, it would, in our view, be
inappropriate to infer from Paragraph 1(a) of the Illustrative List that TRIMs having the
characteristics described in that paragraph will always be inconsistent with Article III:4 of the
GATT 1994, irrespective of whether they may be c overed by the terms of Article III:8(a) of the
GATT 1994.
7.121 In the light of the foregoing considerations, we conclude that Paragraph 1(a) of the Illustrative
List in the Annex to the TRIMs Agreement does not obviate the need for us to undertake an analysis
of whether the challenged measures are outside of th e scope of application of Article III:4 of the
GATT 1994 by virtue of the operation of Article III:8(a) of the GATT 1994.
Whether the challenged measures are of the kind described in Article III:8(a) of the GATT 1994
7.122 These proceedings are the first where a pane l has been asked to interpret and apply
Article III:8(a) of the GATT 1994. A plain reading of this provision, which we have already set out
above, suggests that it can be broken up into a number of cumulative elements. The parties' arguments
appear to raise issues with respect to the following three questions:
(i) whether the challenged measures can be characterized as "laws, regulations
or requirements governing procurement";

264 The obligation in Article 2.1 of the TRIMs Agreement is further qualified by the statement that it is
"without prejudice to other rights and obligations under the GATT 1994".

(ii) whether the challenged measures involve " procurement by governmental
agencies"; and
(iii) whether any "procurement" that exists is undertaken "for governmental
purposes and not with a view to commercial resale or with a view to use in
the production of goods for commercial sale".
"Laws, regulations or requirements governing procurement" of electricity
7.123 The complainants' claims under Article 2.1 of the TRIMs Agreement and Article III:4 of the
GATT 1994 are focused on the "Minimum Required Domestic Content Level" imposed under the FIT
Programme, and the FIT and microFIT Contracts, which they allege results in less favourable
treatment of imported renewable energy generation equipment compared with the treatment accorded
to domestic like products
265. Canada argues that it has no nationa l treatment obligations with respect
to the "Minimum Required Domestic Content Level" because it is part of the "laws, regulations or
requirements governing the procurement" of electricity unde r the FIT Programme. In other words,
Canada submits that the "Minimum Required Domes tic Content Level" is removed from the scope of
Article III by operation of Article III:8(a) of the GATT 1994266.
7.124 As we explain in more detail elsewhere in these Reports267, the evidence before us reveals that
the "Minimum Required Domestic Content Level" is a condition that must be satisfied by electricity
generators utilizing solar PV or windpower technologies wanting to participate in the FIT Programme.
In other words, the "Minimum Required Domestic Content Level" compels the purchase and use of
certain renewable energy generation equipment that is sourced in Ontario as a necessary prerequisite
for the alleged procurement by the Government of On tario to take place. We agree with Canada that a
measure "governing" procurement is one that cont rols, regulates or determines that procurement 268. It
follows that the "Minimum Required Domestic Cont ent Level" is a "requirement[] governing" the
alleged procurement of electricity by the Govern ment of Ontario under the FIT Programme, and the
FIT and microFIT Contracts, for purposes of Article III:8(a).
7.125 The European Union does not contest that compliance with the "Minimum Required
Domestic Content Level" is a necessary condition fo r the alleged procurement of electricity to take
place. Nevertheless, according to the European Union, "the domestic content requirements imposed
by the Government of Ontario do not 'govern' the alleged procurement of electricity, within the
meaning of Article III:8(a), because they are not requirements related to the subject-matter of the
procurement, which is electricity "269. The European Union submits that "the text of Article III:8(a) is
structured in a manner that the term 'products' is directly qualified by the term 'purchased', which
implies that the requirements [must] govern the products purchased by governmental agencies and not
other products that do not have an y relationship with the object or subject-matter of the procurement
contract"270. In other words, the European Union argues th at the "laws, regulations or requirements"
referred to in Article III:8(a) of the GATT 1994 can only be understood to refer to "laws, regulations

265 Japan's first written submission, paras. 272-28 3 and 295-297; and European Union's first written
submission, paras. 106, 152-153, 156, and 158-162.
266 Canada's first written submission (DS412), paras. 62, 67, and 101; first written submission (DS426),
paras. 3 and 11; opening statement at the first meeting of the Panel, paras. 5 and 9; second written submission,
paras. 2 and 13; and opening statement at the second meeting of the Panel, paras. 5 and 12.
267 See below at paras. 7.164-7.166.
268 See Canada's first written subm ission (DS412), para. 83 referring to the ordinary meaning of
"govern" endorsed in the Panel Report, EC – Selected Customs Matters, para. 7.529.
269 European Union's response to Panel question No. 22 (first set), para. 88. (emphasis added)
270 European Union's second written submission, para. 113. See also European Union's response to
Panel question No. 56 (first set).

or requirements" that directly relate to the product procured by the government. Thus, because the
"Minimum Required Domestic Content Level" is imposed with respect to products (certain renewable
energy generation equipment) that are different to the product allegedly procured (electricity), the
European Union argues that the "Minimum Required Domestic Content Level" cannot be said to
actually "govern" the alleged procurement. For th is reason, the European Union asserts that the
challenged measures cannot be covered by the terms of Article III:8(a)
271.
7.126 We have difficulty accepting the European Union's interpretation. The words "laws,
regulations or requirements governing" in Article I II:8(a) are not linked directly to the "products
purchased" but to the "procurement" of such produ cts. In this light, we cannot accept that the
reference to "laws, regulations or re quirements governing the procurement" can only be read to mean
"laws, regulations or requirements" that directly affect a product that is identical to the product that is
the subject of the alleged procurement. In our view, it is apparent from the text of Article III:8(a) that
the focus of the analysis must be the "laws, re gulations or requirements governing" the alleged
procurement of electricity.
7.127 As already mentioned, the "Minimum Required Domestic Content Level" is a necessary
prerequisite for the alleged procurement by the G overnment of Ontario to take place, and to this
extent, we are of the view that such requirements "govern" the alleged procurement. Furthermore, we
observe that the electricity allegedly procured by the Government of Ontario under the FIT
Programme is produced using the renewable energy generation equipment that is the subject of the
"Minimum Required Domestic Content Level". Thus , to the extent that the "Minimum Required
Domestic Content Level" relates to the very same equipment that is needed and used to produce the
electricity that is allegedly procured, there is ve ry clearly a close relationship between the products
that are affected by the relevant "laws, regula tions or requirements" (renewable energy generation
equipment) and the product that is allegedly procured (electricity).
7.128 Thus, for the above reasons, we find that th e "Minimum Required Domestic Content Level"
should be properly characterized as one of the "req uirements governing" the alleged procurement of
electricity for the purpose of Article III:8(a).
"Procurement by governmental agencies"
7.129 We now proceed to examine whethe r the measures at issue involve " procurement by
governmental agencies of products purchased" within the meaning of Article III:8(a) of the
GATT 1994.
7.130 The European Union and Canada consider th at the ordinary meanings of the words
"procurement" and "purchased" shoul d be understood, in the context of Article III:8(a) of the
GATT 1994, to imply the same governmental action of acquiring a product 272. Although agreeing
with the view that a "procurement" can be de fined as "[t]he action of obtaining something;
acquisition"273, Japan submits that the notion of "procureme nt" referred to in Article III.8(a) is not
entirely captured by the meaning of "purchased" that is advanced by the European Union and Canada.
In Japan's view, a number of contextual elements suggest that the proper interpretation of the term
"procurement", and thus a finding that "procureme nt by governmental agencies" exists, involves

271 In its third-party submission, the United States also raised the issue of the legal implications of the
difference between the product subject to the "Minimum Required Domestic Content Level" and the product
that is the subject of the alleged procurement. See United States' third-party submission, paras. 18-19.
272 European Union's first written submission, para. 114; response to Panel question No. 56 (first set);
Canada's first written submission (DS412), para. 76; and response to Panel question No. 56 (first set).
273 Japan's first written submission, para. 51.

consideration of the following four factors, "none of which alone may be decisive": (i) governmental
payment for the procurement; (ii) governmental u se, consumption or benefit; (iii) governmental
obtainment, acquisition, or possession; and (iv) governmental control over the obtaining of the
product
274.
7.131 We have some difficulty accepting Japan's interp retation of the term "procurement". In our
view, Japan's argument that "procurement" implies "governmental use, benefit, or consumption" does
not sit well with the immediate context within which the term "procurement" is used in Article III:8(a)
of the GATT 1994. As the parties have explained, the ordinary meaning of the word "procurement"
includes "[t]he action of obtaining something; an acquisition" 275. Article III:8(a) refers to
"procurement by governmental agencies of products purchased". The ordinary meanings of the word
"purchase" advanced by the parties include "to obtain; to gain possession of" and "to acquire in
exchange for payment in money or an equivalent; to buy" 276. The notion of governmental use, benefit
or consumption is not immediately apparent from the ordinary meanings of these terms. Rather, in our
view, to the extent that the ordinary meanings of both words refer to the action of "obtaining" or
"acquiring" something, they support a conclusion that "procurement" and "purchase" should be given
the same meaning. Indeed, the fact that Article III:8(a) describes the " procurement … of products" as
"products purchased" would seem to confirm the view that th e term "procurement" in Article III:8(a)
should be given the same essential meaning as the word "purchased" and vice versa.
7.132 Moreover, if the notion of "procurement" that is referred to in Article III:8(a) were interpreted
to necessarily include "governmental use, consumpti on, or benefit" of the product at issue, there
would have been no need to exclude government procurement of products "with a view to commercial
resale or with a view to use in the production of goods for commercial sale" from the types of
government procurement covered under Article III:8(a). This is because government procurement of a
product for its own use, consumption or benefit ca nnot, by definition, amount to procurement "with a
view to commercial resale or with a view to use in the production of goods for commercial sale". Had
negotiators intended for the notion of "procureme nt" to be understood to include purchases of
products for a government's own use, consumption or benefit, it would have been sufficient to end
Article III:8(a) with the words "procurement by governmental agencies of product purchased for
governmental purposes".
7.133 We also are not persuaded that the refere nces made by Japan to the GATT Panel in US –
Sonar Mapping and to Canada's Appendix I to the GPA support Japan's interpretation of the term
"procurement" in Article III:8(a) of the GATT 1994. Starting with the latter, we agree with Canada
that Appendix I to the GPA is not intended to provi de a general definition of the term procurement,
nor an interpretation of the term "procurement" within the meaning of Article III:8(a) of the
GATT 1994. It is evident that the definition Canada has agreed to be bound by for the purpose of the
GPA is not intended to define the scope of its ri ghts and obligations under Article III:8(a) of the
GATT 1994.
7.134 As to the GATT panel in US – Sonar Mapping , we believe there are a number of features of
the facts and law at issue in that dispute which significantly diminish the relevance, for these disputes,

274 Japan's opening statement at the first meeting of the Panel, paras. 49-58; second written submission,
para. 54; and opening statement at the second meeting of the Panel, para. 28.
275 The French and Spanish texts of Article III:8(a) of the GATT 1994 confirm this understanding of
the meaning of "procurement", respectively providing in the relevant part: " produits achetés pour les besoins
276 Japan's second written submission, para. 38; Canada's second written submission, para. 93; opening
statement at the second meeting of the Panel, paras. 22-23; European Union's first written submission, para. 114;
and opening statement at the second meeting of the Panel, para. 38.

of the panel's findings Japan relies upon. First, we note that the GATT panel in US - Sonar Mapping
examined whether a contract between two private companies regarding the acquisition of a sonar
mapping system constituted "govern ment procurement" under Article I:1(a) of the Tokyo Round
Agreement on Government Procurement. Thus, it was within the very specific context of an alleged
government procurement effected through purchases ma de by two private companies that the GATT
panel identified the four elements that Japan refers to in these proceedings
277. Second, we note that the
wording and structure of Article I:1(a) of th e Tokyo Round Agreement on Government Procurement
is fundamentally different from Article III:8(a). In pa rticular, Article I:1(a) refers to several methods
of procurement, including lease, rental or hire-purch ase, with or without an option to buy, which are
not found in Article III:8(a). Indeed, it was becaus e these methods of procurement referred to in
Article I:1(a) "were all means of obtaining the u se or benefit of a product", that the GATT panel
concluded that "the word 'procurement' could be unde rstood to refer to the obtaining of such use or
benefit"278.
7.135 Thus, in our view, the term "procurement", when interpreted in its immediate context, should
be understood to have the same meaning as the term "purchase". We can find no support in the text of
Article III:8(a) and the context of the term "procu rement" to accept Japan's argument that this term
must necessarily involve governmental use, consumption or benefit of the procured product279.
7.136 As already noted, the ordinary meanings of the word "purchase" advanced by the parties
include "to obtain; to gain possession of" and "to ac quire in exchange for payment in money or an
equivalent; to buy"280. For the reasons explained in Section V II.C.2(c)(iii) of these Reports, where we
evaluate the parties' arguments concerning the proper legal characterization of the measures at issue
under Article 1 of the SCM Agreement, we interp ret government "purchases" of goods to mean the
action by which a government obtains possession (i ncluding via obtaining an entitlement) over goods
through some kind of payment (moneta ry or otherwise). In our view, this interpretation of the notion
of a government "purchase" of goods is equally applicable to guide our analysis of the parties' claims
under Article III:8(a) of the GATT 1994. Thus, we find that for the purpose of Article III:8(a) of the
GATT 1994, a "procurement by governmental agen cies of products purchased" should be understood
to refer to the action of a government of obtaini ng possession (including via obtaining an entitlement)
over products through some kind of payment (monetary or otherwise). Moreover, in the light of this
interpretation and our finding, set out in Section VII.C.2(c)(iii) of these Reports, that the challenged
measures may be properly characterized as "governme nt purchases [of] goods" within the meaning of
Article 1.1(a)(1)(iii) of the SCM Agreement, we co nclude that the measures at issue also involve
"procurement by governmental agencies of products purchased" for the purpose of Article III:8(a) of
the GATT 1994.

277 GATT Panel Report, US – Sonar Mapping , para. 4.7, as cited by Japan in its opening statement at
the first meeting of the Panel, para. 50.
278 GATT Panel Report, US – Sonar Mapping, para. 4.5.
279 With respect to the other elements considered by the GATT panel in US – Sonar Mapping –
payment by government; governmental possession; and governmental control over the obtaining of the product
– we consider them to be met when a governmental agen cy "purchases" a product. Thus, they do not support
Japan's understanding that there is a difference in meaning between "procurement" and "purchased" in
Article III:8(a) of the GATT 1994.
280 Japan's second written submission, para. 38; Canada's second written submission, para. 93; opening
statement at the second meeting of the Panel, paras. 22-23; European Union's first written submission, para. 114;
and opening statement at the second meeting of the Panel, para. 38.

Procurement "for governmental purposes and not with a view to commercial resale or with a view to
use in the production of goods for commercial sale"
7.137 We now proceed to examine whether the procurem ent by the Government of Ontario is "for
governmental purposes and not with a view to comme rcial resale or with a view to use in the
production of goods for commercial sale". The main issu es raised in the partie s' arguments relate to
the meanings of the expression "governmental pu rposes" and the term "commercial resale" in
Article III:8(a) of the GATT 1994.
- "Governmental purposes"
7.138 With respect to the ordinary meaning of the expression "governmental purposes", we first
note that the parties have advanced a range of different meanings. At one end of the spectrum, Canada
proposes the broadest meaning of the parties, s uggesting that a purchase for "governmental purposes"
may exist whenever a government purchases a product for a stated aim of the government
281. At the
other extreme, Japan advances the narrowest mean ing, submitting that a purchase for "governmental
purposes" must be limited to purchases of products for governmental use, consumption or benefit 282.
The European Union takes an intermediate position, proposing a meaning of "governmental purposes"
that refers to government purchases for government al needs, which include both the purchase of
goods consumed by the government itself and tho se necessary for a government's provision of public
services283.
7.139 As we understand it, the ordinary me aning of "governmental purposes" (" les besoins des
pouvoirs publics " and " las necesidades de los poderes públicos ", respectively in the French and
Spanish versions) is relatively broad, and may enco mpass all three of the meanings advanced by the
parties. We must, however, interpret this expression within its context. In this regard, we find it
particularly instructive to observe that the expression "governmental purposes" is immediately
followed by the words "and not with a view to co mmercial resale or with a view to use in the
production of goods for comme rcial sale." Canada argues that the "requirement that the purchase is
not with a view to commercial resale is a requirement in addition to the requirement that the purchase
is for governmental purposes" 284. Thus, Canada is of the view that the "governmental purposes" and
"not with a view to commercial resale" language establishes two separate requirements that must both
be satisfied for a law, regulation or requirement to fall within the scope of Article III:8(a). Canada
concludes from this observation that "the meani ng of a purchase for 'governmental purposes' cannot
be confined to a purchase for governmental consumption, and the meaning of a purchase 'with a view

closing statement at the first meeting of the Panel, para. 9; response to Panel question No. 28 (first set); second
written submission, para. 50; opening statement at the s econd meeting of the Panel, para. 33; closing statement
at the second meeting of the Panel, para. 5; and response to Panel question No. 47 (second set).
282 Japan's first written submission, paras. 284 and 2 87; opening statement at the first meeting of the
Panel, paras. 53, 69; 71, 74-75; second written submission, para. 61; opening statement at the second meeting of
the Panel, para. 33; and response to Panel question No. 47 (second set).
283 European Union's first written submission, paras. 116 and 118; second written submission,
paras. 128 and 130; opening statement at the second meeting of the Panel, para. 48; response to Panel question
No. 47 (second set); and comments on Canada's response to Panel question No. 45 (second set). Japan considers
that this may also be a plausible reading of "governmen tal purposes" (Japan's openi ng statement at the second
meeting of the Panel, para. 33). The European Union finds support for its interpretation in the French and
Spanish versions of Article III:8(a) of the GATT 1994, which respectively provide in the relevant part: "produits
poderes públicos".
284 Canada's second written submission, para. 75.

to commercial resale' cannot be confined to a purchase with the aim to resell"
285. The complainants,
however, submit that the expression "not with a view to commercial resale" should be contrasted with
the expression "for governmental purposes"286.
7.140 In our view, the plain language of Article III:8( a) suggests that a "procurement … of products
purchased for governmental purposes" cannot also be a "procurement … of products purchased …
with a view to commercial resale or with a view to use in the production of goods for commercial
sale". In this regard, we see the expression "and not with a view to commercial resale …" as serving
to specifically inform and limit the otherwise re latively broad ordinary meaning of the term
"governmental purposes". We are not convinced by Canada's arguments that the "governmental
purposes" and "not with a view to commercial resale" language establishes two separate and
cumulative requirements. In our view, the fact that Article III:8(a) includes the words " and not" after
"governmental purposes" qualifies this expression by indicating that the "procurement … of products
purchased … with a view to commercial resale" ar e excluded from the operation of Article III:8(a).
7.141 The parties have argued that Article XVII:2 of the GATT 1994 also serves as relevant context
for the interpretation of Article III:8(a), with Japan and the European Union, in addition, submitting
that the negotiating history of the two provisions supp orts their own interpretations of Article III:8(a).
According to Canada, Article XVII:2 helps to dem onstrate not only that "governmental purposes" in
Article III:8(a) is not confined to "governmental c onsumption or use", but also that the "governmental
purposes" and "not with a view to commercia l resale" language establishes two cumulative
conditions287. Japan, on the other hand, submits that Artic le XVII:2, together with its negotiating
history, reveals that the two provisions exclude the same type of "procurement", namely procurement
that is for "governmental consumption or use", from the scope of their other operative
subparagraphs288. Likewise, the European Union consid ers that the negotiating history of
Articles III:8(a) and XVII:2 shows that, despite di fferences in language, both provisions were meant
to address the same matter, concluding that the words "'for governmental purposes' or 'government
needs' are conterminous with 'products for imme diate or ultimate consumption in governmental
use'"289.
7.142 Article XVII:2 reads as follows:
The provisions of paragraph 1 of this Artic le shall not apply to imports of products
for immediate or ultimate consumption in governmental use and not otherwise for
resale or use in the production of goods* for sale. With respect to such imports, each
contracting party shall accord to the trade of the other contracting parties fair and
equitable treatment.
7.143 As the European Union observes 290, both Article III:8(a) and Article XVII:2 describe the
circumstances when purchase s of products undertaken by governmental agencies under
Article III:8(a), or imports of products by State Trading Enterprises for purposes of Article XVII:2,
shall be removed from their main respective discip lines. Thus, measures covered by Article III:8(a)

285 Canada's second written submission, para. 76. See also Canada's closing statement at the second
meeting of the Panel, para. 14; and comments on Japan's and the European Union's responses to Panel questions
Nos. 45 and 48 (second set).
286 Japan's opening statement at the first meeting of the Panel, para. 82; and European Union's opening
statement at the first meeting of the Panel, para. 39.
287 Canada's response to Panel question No. 45 (second set).
288 Japan's first written submission, fn. 457; opening statement at the first meeting of the Panel,
paras. 56 and 74; and response to Panel question No. 45 (second set).
289 European Union's response to Panel question No. 45 (second set), para. 75.
290 European Union's response to Panel question No. 45 (second set).

will be automatically removed from the scope of the national treatment obligations set out elsewhere
in Article III. Similarly, the kind of purchases iden tified in Article XVII:2 will be removed from the
scope of Article XVII:1, which imposes an obligation on State Trading Enterprises to conduct its
purchasing activities involving either imports or export s in a manner consistent with the principles of
non-discrimination found in the GATT 1994. The la tter includes the national treatment obligations
found in Article III of the GATT 1994
291. To this extent, it can be concluded from the text of
Articles III:8(a) and XVII:2 that both provisions ar e intended to define the scope of the national
treatment obligations in the context of two particul ar types of purchases: (i) purchases of products by
governmental agencies (Article III:8(a)); and (ii) purchases of products through State Trading
Enterprises (Article XVII:2).
7.144 The kind of government purchases covered under the terms of Article III:8(a) are those that
are "for governmental purposes and not with a view to commercial resale or with a view to use in the
production of goods for commercial sale". On the ot her hand, Article XVII:2 applies to purchases of
products "for immediate or ultimate consumption in governmental use and not otherwise for resale or
use in the production of goods for sale". At first si ght, the distinct language used to describe the types
of relevant purchases that are covered by the two provisions could be interp reted to signify that
Articles III:8(a) and XVII:2 were intended to cover a different range of transactions (not only because
of the differences in the entities covered by the prov isions). However, in our view, such a conclusion
would not be completely accurate as it is evident fro m the language used in both provisions that there
is, at the very least, significant overlap with respect to the types of purchases that are excluded from
their terms of operation, namely, purchases "not with a view to commercial resale …" (under
Article III:8(a)) and purchases "not otherwise for resale …" (under Article XVII:2). Thus, to the
extent that the language of Article XVII:2 ma y serve as context for the interpretation of
Article III:8(a), we find that it helps to confirm that a "procurement … of products purchased for
governmental purposes" under Article III:8(a) cannot also be a "procurement … of products
purchased … with a view to commercial resale or wi th a view to use in the production of goods for
commercial sale".
7.145 In the light of the foregoing analysis, we find that the term "governmental purposes" should
be interpreted in juxtaposition to the expression "not with a view to commercial resale or with a view
to use in the production of goods fo r commercial sale" that appears in Article III:8(a). In other words,
we conclude that a purchase of goods for "governmen tal purposes" cannot at the same time amount to
a government purchase of goods "with a view to commercial resale" under the terms of
Article III:8(a). Thus, if we find that the procurem ent of electricity by the Government of Ontario
under the FIT Programme is undertaken "with a view to commercial resale or with a view to use in
the production of goods for commercial sale", su ch procurement will not be covered by
Article III:8(a)292. With this finding in mind, we now turn to examine whether the measures at issue
involve a government purchase "with a view to commercial resale".
 - "Commercial resale"
7.146 The parties have advanced different meanings of the expression "with a view to commercial
resale" that appears in Article III:8(a) of the GATT 1994. On the one hand, Canada argues that it

291 Panel Report, Korea – Various Measures on Beef, para. 753.
292 We note that even pursuant to Canada's own interpretation of "governmental purposes" and
"commercial resale" as cumulative and separate requirements, a government procurement will not be covered by
Article III:8(a) of the GATT 1994, if it is undertaken "with a view to commercial resale", regardless of whether
such procurement can be said to be for "governmental purposes".

means a purchase with the aim to resell for profit
293. The complainants, on the other hand, submit that
"with a view to commercial resale" means with a view to being sold or introduced into the stream of
commerce, trade or market, regardless of any profit294.
7.147 We recall that the Government of Ontario purchases electricity under the FIT Programme,
through the FIT and microFIT Contracts. The purchased electricity is injected by generators into
Ontario's electricity grid via transmission and di stribution networks, and is eventually sold to
consumers by Hydro One, LDCs and private-sector licensed electricity retailers. Hydro One is a
holding company wholly-owned by the Government of Ontario and an "agent" of the Government of
Ontario. As explained in more detail below 295, Hydro One is also a "pub lic body" for the purpose of
Article 1 of the SCM Agreement. Of the 80 LDCs th at currently operate in Ontario, 77 are owned by
municipal governments. The private-sector licensed retailers "sell contracts to businesses and
consumers"296. We understand there are currently 45 licensed electricity retailers operating in Ontario
that compete with LDCs in their respective service areas 297. Thus, it is evident that the electricity
purchased by the Government of Ontario under the FIT Programme is resold to retail consumers
through Hydro One and the LDCs in competition with private-sector retailers. We are not convinced
by Canada's argument that electricity purchased under the FIT Programme is not resold because of the
fact that it is injected into Ontario's electricity grid, where it is pooled with electricity from other
sources298. As we see it, the fact that electricity purchased under the FIT Programme is consumed
through precisely the same channels as electricity supplied from all other generating sources supports
the view that it is resold by the Government of Ontario and the municipal governments through Hydro
One and the LDCs in competition with private-sector electricity retailers.
7.148 Thus, to the extent that the notion of commerce should, as the complainants argue, be
understood to simply encompass the buying and selli ng or trading of products into a market, the
Government of Ontario's purchases of electricity, th rough the FIT Programme, may be considered to
be a first step in the resale of electricity to reta il consumers, and thereby the introduction of electricity
into commerce. Canada, however, ar gues that even under the complainan ts' interpretation of the term
"commercial resale", the purchases of electricity by the Government of Ontario under the FIT
Programme cannot be qualified as be ing made "with a view to commercial resale". In particular,
Canada argues that the OPA cannot be said to sell or introduce products into the " market", because a
"market" "where supply and demand freely meet" does not exist in the Ontario electricity system 299.
We are not persuaded by Canada's argument. In our view, the consideration of whether Ontario's

293 Canada's first written submission (DS412), para. 90; first written submission (DS426), paras. 35-39;
opening statement at the first meeting of the Panel, paras. 55 and 57; response to Panel question No. 25(a) (first
set); second written submission, para. 69; and opening statement at the second meeting of the Panel, para. 48.
294 Japan's opening statement at the first meeting of the Panel, paras. 78 and 85; second written
submission, para. 66; opening statement at the second meeting of the Panel, para. 36; and European Union's first
written submission, para. 139; opening statement at the first meeting of the Panel, para. 39; second written
submission, para. 135; opening statement at the second meeting of the Panel, para. 54; and response to Panel
question No. 48 (second set).
295 See below at paras. 7.234-7.239.
296 Ontario's Long-Term Energy Plan, Exhibit CDA-6, Appendix One.
297 Electricity Act of 1998 , Exhibit JPN-5, Section 29; Retail Settlement Code, Exhibit JPN-71,
Sections 1.1, 2.7, 10.1, and 12; and OEB Licensed Electricity Retailers (http://www.ontarioenergyboard.ca/html
/licences/all_issuedlicences_read.cfm?showtype=Electricity%20Retailer) referred to in IESO: Retail Contracts,
Exhibit JPN-90.
298 Canada's opening statement at the first meeting of the Panel, para. 56; response to Panel question
No. 25(a) (first set); second written submission, para. 68 ; and opening statement at the second meeting of the
Panel, para. 47.
299 Canada's first written submission (DS426), para. 43, referring to European Union's first written
submission, paras. 129-130.

electricity system is, as a whole, highly regulated or made up entirely of competitive markets at the
different levels of trade does not change the basic fact that electricity purchased by the Government of
Ontario under the FIT Programme is bought from genera tors and sold to retail consumers through the
same channels as all other electricity by Hydro One and LDCs in competition with private sector
electricity retailers . Therefore, consistently with the comp lainants' interpretation of "commercial
resale", the purchased electricity is introduced into commerce.
7.149 Canada submits that the Government of On tario's purchases of electricity under the FIT
Programme are not "with a view to commercial resale" because the OPA does not profit from the
resale of electricity but simply recovers the cost of purchasing renewable electricity
300. However,
whether the OPA profits from the Government of Ontario's purchases of electricity under the FIT
Programme is not conclusive of wh ether any profit is made by the Government of Ontario on the
resale of electricity to consumers. In this regard, we note that Hydro One distributes electricity to
almost one third of electricity consumers in On tario. The Memorandum of Agreement between the
Government of Ontario and Hydro One provides that Hydro One "will operate as a commercial
enterprise with an independent Board of Directors that will, at all times, exercise its fiduciary
responsibility and a duty of care to act in the best interests of [Hydro One]" 301. Canada has
acknowledged that both Hydro One and the 77 LD Cs owned by the municipal governments are
intended to make returns from their electricity tr ansmission and distribution activities and/or assets on
the basis of OEB-approved prices that are "just and reasonable" 302. In this connection, in 2010, Hydro
One paid CAD 28 million in dividends to its shareholder, the Province of Ontario303.
7.150 Therefore, although the OPA does not profit from the resale of electricity through Hydro One
and the LDCs, it is evident that the Government of Ontario and Ontario's municipal governments will
profit from these operations. We are not convinced by Canada's argument that the Government of
Ontario does not profit from the resale of electricity because "[d]istributors profit from their service of
distributing electricity to the end-user, rather th an any on-sale of the renewable electricity, itself" 304.
To the extent that the service of electricity distri bution is necessarily tied to and inseparable from the
sale of electricity as a "commodity", there is no b asis to conclude that the resale activities of Hydro
One and almost all of the LDCs do not result in making profits.
7.151 Having found that Hydro One and the LDCs sell electricity in competition with private-sector
licensed retailers and that the Government of On tario and the municipal governments profit from the
resale of electricity purchased under the FIT Programme to consumers, it is clear to us, for purposes
of these disputes, that the nature of the resale of electricity purchased under the FIT Programme is
"commercial". In coming to this conclusion, we emphasize that this does not mean we agree with
Canada's understanding that a "co mmercial resale" will always necessarily involve profit, as there

300 Canada's first written submission (DS412), para. 92; and response to Panel question No. 25(a) (first
set).
301 Memorandum of Agreement between Her Majesty the Queen in Right of the Province of Ontario as
Represented by the Minister of Energy and Hydro One Inc., 27 March 2008 ("Memorandum of Agreement
between the Government of Ontario and Hydro One"), Exhibit CDA-107, p. 1.
302 Canada's response to Panel question No. 13(b) (second set); citing OEB, "Report of the Board on the
Cost of Capital for Ontario's Regulated Utilities, EB-2009- 0084, 11 December 2009, ("OEB Report on the cost
of capital for Ontario's regulated utilitie s"), Exhibit CDA-64, p. 8. Canada al so states that the rates received by
LDCs allow for cost recovery and a rate of return that is "just and reasonable". (Canada's response to Panel
question No. 13(a) (second set)).
303 Hydro One Releases 2010 Year-End Financial Results, Exhibit JPN-41, p. 2. Hydro One operates
through its subsidiaries in electricity transmission and distribution, and telecom businesses. Total revenues for
2010 were CAD 5,124 million, from which CAD 5,061 million represented transmission and distribution
revenues. Hydro One Releases 2010 Year-End Financial Results, Exhibit JPN-41, pp. 2-3.
304 Canada's opening statement at the second meeting of the Panel, para. 55.

may well be situations where a resale of a product purchased by a governmental agency may not
involve a profit but still may be "commercial" for the purpose of Article III:8(a) of the GATT 1994.
Indeed, it is a fact that loss-making sales can be, a nd often are, a part of ordinary commercial activity.
However, in the present factual situation, we have concluded that it is sufficient, for the purpose of
finding that the Government of Ontario purchases el ectricity under the FIT Programme "with a view
to commercial resale", that the Government of Ontario and the municipal governments not only profit
from the resale of electricity that is purchased under the FIT Programme, but also that electricity
resales are made in competition with licensed elect ricity retailers. In the light of the foregoing
considerations, we find that the Government of On tario's procurement of electricity under the FIT
Programme is undertaken "with a view to commercial resale".
Conclusion with respect to whether the challenged me asures fall outside the scope of Article III:4 of
the GATT 1994 by virtue of the operation of Article III:8(a) of the GATT 1994
7.152 We have concluded above that: (i) the Government of Ontario's purchases of electricity under
the FIT Programme constitute "procurement", within the meaning of that term in Article III:8(a);
(ii) the "Minimum Required Domestic Content Level" prescribed under the FIT Programme, and
effected through the FIT and microFIT Contracts, is one of the "requirements governing" the
Government of Ontario's "procurement" of elec tricity; and (iii) the Government of Ontario's
"procurement" of electricity under the FIT Progr amme is undertaken "with a view to commercial
resale". In the light of this latter conclusion, we find that the measures at issue are not covered by the
terms of Article III:8(a), and that consequently , Canada cannot rely on Article III:8(a) of the
GATT 1994 to exclude the application of Article III:4 of the GATT 1994 to the "Minimum Required
Domestic Content Level" that the complainants challenge.
7.153 In coming to this conclusion, we express no opinion about the legitimacy of the Government
of Ontario's objective of promoting the use of re newable energy in the production of electricity
through the FIT Programme. Our conclusion that the Government of Ontario purchases electricity
under the FIT Programme "with a view to commercial resale", within the meaning of Article III:8(a),
must be understood only as a judgement about the ex tent to which Canada is entitled to rely upon
Article III:8(a) of the GATT 1994 to maintain a me asure that is alleged to discriminate against
imported products under the terms of Article III:4.
7.154 Having found that the challenged measures are not removed from the obligations prescribed
under Article III:4 by virtue of the operation of Ar ticle III:8(a), it follows that they must also be
subject to the obligations in Article 2.1 of th e TRIMs Agreement, as elaborated and informed by
Article 2.2 and the Illustrative List contained in the Annex to the TRIMs Agreement. In this
connection, we recall that one of the arguments that has been advanced by both Japan and the
European Union is that the challenged measures may be found to be inconsiste nt with Article 2.1 of
the TRIMs Agreement by virtue of the operation of Paragraph 1(a) of the Illustrative List in the
Annex to the TRIMs Agreement, which describes one category of TRIMs that is deemed to be
inconsistent with the obligation of national treat ment found in Article III:4 of the GATT 1994. We
now turn to evaluate the merits this argument.

(ii) Whether the measures at issu e are inconsistent with Artic le III:4 of the GATT 1994, and
thereby also Article 2.1 of the TRIMs Agreement, by virtue of the operation of Article 2.2 of
the TRIMs Agreement and Paragraph 1(a) of th e Illustrative List in the Annex to the
TRIMs Agreement
7.155 As we have previously explained
305, Article 2.2 of the TRIMs Agreement prescribes that the
TRIMs identified in Paragraph 1(a) of the Illustra tive List in the Annex to the TRIMs Agreement are
inconsistent with Article III:4 of the GATT 1994. Thus, where it is established that a measure falls
within the scope of the obligations in Article III: 4 of the GATT 1994, that measure may be found to
be inconsistent with those obligations, and thereb y also Article 2.1 of the TRIMs Agreement, if it
shares the characteristics of the TRIMs described in Paragraph 1(a) of the Illustrative List.
7.156 The European Union argues that the measures at issue are covered by Paragraph 1(a) of the
Illustrative List because: (i) compliance with th e "Minimum Required Domestic Content Level" is
necessary for generators to participate in the FIT Programme; and (ii) the "Minimum Required
Domestic Content Level" requires generators to purchase or use domestic renewable energy
equipment and components
306. Similarly, Japan argues that the measures at issue are of the type
explicitly listed in Paragraph 1(a) of the Illust rative List because the "Minimum Required Domestic
Content Level" requires wind and solar PV genera tors to use generation equipment produced in
Ontario in order to take advantage of the rates offered by the FIT Programme 307. Canada has not
advanced any arguments to reject the complainants' allegations that the challenged measures are of the
kind described in Paragraph 1(a) of the Illustrative List.
7.157 Given the parties' arguments and the language of Paragraph 1(a) of the Illustrative List 308, we
are of the view that in order to determine whet her the complainants have established that the
challenged measures share the characteristics of the TRIMs described in Paragraph 1(a) of the
Illustrative List, we must ascertain: (i) whether the "Minimum Required Domestic Content Level" that
is applied under the FIT Programme requires elec tricity generators usi ng solar PV and windpower
technology to purchase or use renewable energy ge neration equipment and components that are of
Canadian origin or from a Canadian source; a nd (ii) whether compliance with the "Minimum
Required Domestic Content Level" is necessary in order to obtain an "advantage". Below we examine
each of these elements in turn.
Whether the "Minimum Required Domestic Content Level" requires the purchase or use of products
of Canadian origin or from a Canadian source
7.158 The FIT Rules define the "Minimum Required Domestic Content Level" as the minimum
percentage of domestic content level set out on the FIT Contract cover page that should be achieved
by contract facilities utilizing windpower with a contract capacity greater than 10 kW, or contract
facilities utilizing solar PV 309. Japan has presented the following table to summarize the Minimum
Required Domestic Content Levels that are prescribed under the FIT Programme.

305 See above at para. 7.119.
306 European Union's first written submission, paras. 141, 143, 152, and 156-157. See also
European Union's opening statement at the first meeting of the Panel, para. 43; response to Panel question
No. 14(a) (first set); second written submission, para. 152; and opening statement at the second meeting of the
Panel, para. 61.
307 Japan's first written submission, paras. 295 and 301-302.
308 The relevant text of Paragraph 1(a) of the Illustrative List is set out above at para. 7.115.
309 Ontario Power Authority, Feed-in Tariff Programme Rules, Version 1.5.1, 31 October 2011, ("FIT
Rules"), Exhibit EU-4, Section 6.4(a).

 Wind (FIT) Solar PV (FIT) Solar PV (microFIT)
Milestone Date for
Commercial Operation
2009-2011 2012- 2009-2010 2011- 2009-2010 310 2011-
Minimum Required
Domestic Content Level
25% 50% 50% 60% 40% 60%
Table 1: Minimum Required Domestic Content Levels prescribed under the FIT Programme

7.159 The domestic content level of a contract facility is calculated pursuant to the methodology set
out in Exhibit D of the FIT Contract 311. This Exhibit contains four different "Domestic Content
Grids", each of which identifies a range of diffe rent "Designated Activities" and an associated
"Qualifying Percentage", with respect to each of the categories of renewable energy generation falling
within the scope of the FIT Programme 312. These categories are (i) windpower projects greater than
10 kW; (ii) solar PV projects greater than 10 kW utilizing crystalline silicon PV technology; (iii) solar
PV projects greater than 10 kW utilizing thin-film PV technology; and (iv) solar PV projects less than
or equal to than 10 kW. The Domestic Content Grid s identified for the latter two categories of solar
PV projects apply equally to microFIT projects under the microFIT Rules
313.
7.160 For each "Designated Activity" that is performed in relation to the Contract Facility, an
associated "Qualifying Percentage" will be achieved. For example, where the wind turbine blades of a
windpower project have been "cast in a mould in Onta rio" and the "instrumentation that is within the
blades has been assembled in Ontario", the Contract Facility will achieve a Qualifying Percentage of
16%. The FIT Contract explains that a project's Domestic Content Level will be determined by adding
up the Qualifying Percentages associated with all of the Designated Activities performed in relation to
that particular project.
7.161 Japan, argues that "for all projects", the effect of the Domestic Content Grids is to require that
"at least some goods manufactured, formed, or assembled in Ontario must be utilized in order to
satisfy the Minimum Required Domestic Content Levels" 314. Japan contends that purely service
activities contained in each Domestic Content Grids are not sufficient to meet the "Minimum
Required Domestic Content Levels". In partic ular, Japan submits that the Minimum Required
Domestic Content Levels cannot be achieved, in th e light of the relevant Domestic Content Grids,
without the use of domestic over imported goods for the following reasons315:
In the FIT Contract, Exhibit D, Table 1 fo r Wind Power Projects Greater than 10 kW,
the only designated activities that are purely service activities are line item 17 relating
to construction costs (with a qualifying pe rcentage of 15%) and line item 18 relating
to consulting services (wit h a qualifying percentage of 5%). Thus, services may
contribute at most 20% to the Domestic C ontent Level. In other words, where the
Minimum Required Domestic Content Level is greater than 20% (as it has always
been for these Wind Power Projects … ), at least some Ontario-sourced goods must be
used to satisfy the Minimum Required Domestic Content Level.

310 Solar PV microFIT applications received by the OP A on or before 8 Octobe r 2010 may satisfy the
40% domestic content requirement.
311 FIT Rules, Exhibit EU-4, Section 6.4(b).
312 Ontario Power Authority, Feed-in Tariff Contract, Version 1.5.1, 31 October 2011, ("FIT
Contract"), Exhibit EU-5, Exhibit D.
313 microFIT Rules, Exhibit JPN-157, Definitions, pp. 14-16.
314 Japan's first written submission, para. 173.
315 Japan's first written submission, para. 173.

In the FIT Contract, Exhibit D, Table 2 for Solar (PV) Power Projects Greater than
10 kW Utilizing Crystalline Silicon PV Tec hnology, the only designated activities
that are purely service activities are line item 8 relating to construction costs (with a
qualifying percentage of 18% ) and line item 9 relating to consulting services (with a
qualifying percentage of 4% ). Thus, services may contribute at most 22% to the
Domestic Content Level. In other words, where the Minimum Required Domestic
Content Level is greater than 22% (as it h as always been for these Solar (PV) Power
Projects, … ), at least some Ontario-sourced go ods must be used to satisfy the
Minimum Required Domestic Content Level.
In the FIT Contract, Exhibit D, Table 3 for Solar (PV) Power Projects Greater than
10 kW Utilizing Thin-Film PV Technology, the only designated activities that are
purely service activities are line item 15 relating to construction costs (with a
qualifying percentage of 24%) and line item 16 relating to consulting services (with a
qualifying percentage of 4% ). Thus, services may contribute at most 28% to the
Domestic Content Level. In other words, where the Minimum Required Domestic
Content Level is greater than 28% (as it h as always been for these Solar (PV) Power
Projects, … ), at least some Ontario-sourced go ods must be used to satisfy the
Minimum Required Domestic Content Level.
In the FIT Contract, Exhibit D, Table 4 for Solar (PV) Power Projects Less than or
Equal to 10 kW, the only designated activity that is purely a service activity is line
item 24 relating to labour and services (with a qualifying percentage of 27%). Thus,
services may contribute at most 27% to the Do mestic Content Level. In other words,
where the Minimum Required Domestic Content Level is greater than 27% (as it has
always been for these Solar (PV) Power Projects, … ), at least some Ontario-sourced
goods must be used to satisfy the Minimum Required Domestic Content Level.
In the microFIT Contract, Appendix C, Table 1 for Micro-Scale ( ≤10kW) Solar
Photovoltaic Power Projects, the only desi gnated activity that is purely a service
activity is line item 8 relating to labour a nd services (with a qualifying percentage of
27%). Thus, services may contribute at most 27% to the Domestic Content Level. In
other words, where the Minimum Required Do mestic Content Level is greater than
27% (as it has always been for these Solar Photovoltaic Power Projects, … ), at least
some Ontario-sourced goods must be used to satisfy the Minimum Required
Domestic Content Level.
In the microFIT Contract, Appendix C, Table 2 for Micro-Scale ( ≤10kW) Solar
Photovoltaic Power Projects Utilizing Thin-Film PV Technology, the only designated
activity that is purely a service activity is line item 6 relating to labour and services
(with a qualifying percentage of 28%). Thus, services may contribute at most 28% to
the Domestic Content Level. In other wo rds, where the Minimum Required Domestic
Content Level is greater than 28% (as it h as always been for these Solar Photovoltaic
Power Projects … ), at least some Ontario-sourced goods must be used to satisfy the
Minimum Required Domestic Content Level
316.
7.162 The European Union agrees with Japan's description of how this aspect of the challenged
measures operates, and has adopted all of Japan's arguments in this context as its own317.

316 Japan's first written submission, para. 173.
317 European Union's first written submission, para. 16.

7.163 We have carefully reviewed the operation of the "Minimum Required Domestic Content
Level" and agree with the complainants that in all of the situations described above by Japan, at least
some Ontario-sourced (and therefore Canadian-sourced) goods must be used to satisfy them. Thus, we
find that the "Minimum Required Domestic Content Level" that is applie d under the FIT Programme
requires FIT and microFIT electricity generators us ing solar PV technology an d FIT generators using
windpower technology to purchase or use a certain percentage of renewable energy generation
equipment and components that are sourced in Ontario, and therefore "from a domestic source" within
the meaning of Paragraph 1(a) of the Illustrative List.
Whether compliance with the "Minimum Required Domest ic Content Level" is necessary in order to
obtain an advantage
7.164 The 2009 Ministerial Direction that called upon the OPA to establish the FIT Programme,
also directed the OPA to include minimum domestic content requirements and ensure that any failure
to comply with such requirements "should be s ubject to significant commercial consequences under
the FIT contract"
318. To this end, Section 6.4(b) of the FIT Rules stipulates that "[i]f a Contract
Facility does not meet the Minimum Required Domestic Content Level, the Supplier will be in default
under the FIT Contract." Sections 9.1(b) and (d) of the FIT Contract define a Supplier's failure to
perform "any material covenant or obligation" set forth in the Contract, as well as a Supplier's
representation that is "not true or correct in an y material respect" as events that would place the
Supplier in default. Other provisions of the FIT Cont ract suggest that such events may relate to a
Supplier's obligations with respect to the "Minimum Required Domestic Content Level". For instance,
Article 2.4(b)(iii) of the FIT Contract requires that a Supplier's "Notice to Proceed Request" include a
"Domestic Content Plan" as defined therein. Article 2. 2(f) of the FIT Contract stipulates that "[w]here
the FIT Contract Cover Page identifies the Renewabl e Fuel of the Contract Facility as windpower or
solar (PV), the Supplier shall develop and construc t the Contract Facility such that the Domestic
Content Level is equal to or greater than the Minimum Required Domestic Content Level."
Furthermore, Article 2.11(c) of the FIT Contract requires that a Supplier must provide the OPA with a
"Domestic Content Report" detailing how the Contr act Facility has satisfied the Domestic Required
Content Level within 60 days of its Commercial Operation Date.
7.165 It is evident from the above that compliance with the "Minimum Required Domestic Content
Level" is a necessary condition and prerequisite for electricity generators to participate in the FIT
Programme. As we have explained elsewhere in these Reports, the FIT Programme guarantees a fixed
price for every kWh of electricity delivered into the Ontario electricity system over a period of 20
years by qualifying generators of electric ity using solar PV and windpower technology 319. The prices
paid under the FIT Programme were established by th e OPA with a view to ensuring that participants
are able to cover "typical" development costs and obt ain a reasonable rate of return. Thus, generators
participating in the FIT Programme will be remune rated for each kWh of electricity delivered into
Ontario's electricity system at a price calculated to ensure economically viable operations for "typical"
facilities for a 20-year period. We agree with the complainants that, on the basis of these conditions,
mere participation in FIT Programme may be viewed as obtaining an "advantage" within the meaning
of the chapeau of Paragraph 1(a) of the Illustrativ e List. Moreover, because a failure to comply with
the "Minimum Required Domestic Content Level" w ill place FIT and microFIT generators in default
of their contractual obligations, it may also be concluded that the "Minimum Required Domestic
Content Level" renders the FIT and microFIT Cont racts TRIMs that are "enforceable under domestic
law", and they must also for this reason fall within the scope of the chapeau to Paragraph 1(a) of the
Illustrative List.

318 Minister's 2009 FIT Direction, Exhibit JPN-102, pp. 1-2.
319 See paras. 7.64, 7.203, 7.213, 7.217, and 7.219.

7.166 Thus, on the basis of the foregoing analysis, we find that compliance with the "Minimum
Required Domestic Content Level" not only invo lves the "purchase or use" of products from a
domestic source, within the meaning of Paragraph 1(a) of the Illustrative List, but also that such
compliance "is necessary" for electricity generato rs using solar PV and windpower technologies to
participate in the FIT Programme, and thereby " obtain an advantage", within the meaning of
Paragraph 1 of the Illustrative List. We are therefore satisfied that the challenged measures are TRIMs
falling within the scope of Paragraph 1(a) of the Illu strative List, and that in the light of Article 2.2
and the chapeau to Paragraph 1(a) of the Illustrative List, they are inconsistent with Article III:4 of the
GATT 1994, and thereby also inconsistent with Article 2.1 of the TRIMs Agreement.
(d) Conclusion with respect to the claims unde r Article 2.1 of the TRIMs Agreement and
Article III:4 of the GATT 1994
7.167 In the light of the findings we have made in this Section of these Reports, we conclude that
the FIT Programme, and the FIT and microFIT Contr acts, are inconsistent with Article 2.1 of the
TRIMs Agreement and Article III:4 of the GATT 1994.
C.
WHETHER THE CHALLENGED MEASURES CONSTI TUTE SUBSIDIES WITHIN THE MEANING OF
ARTICLE 1.1 OF THE SCM AGREEMENT
1. Introduction
7.168 In the following sections we evaluate the merits of the complainants' arguments that the FIT
Programme, and the FIT and microFIT Contracts, constitute subsidies within the meaning of
Article 1.1 of the SCM Agreement. We start by ex amining whether the complainants have established
that the challenged measures each constitute a "fin ancial contribution" and/or "income or price
support" within the meaning of Article 1.1(a) of the SCM Agreement. We then turn to assess the
parties' arguments concerning the existence of "benef it" within the meaning of Article 1.1(b) of the
SCM Agreement.
2. Whether the challenged measures constitute a "financial contribution" and/or "income
or price support" within the meaning of Article 1.1(a) of the SCM Agreement
(a) Arguments of the parties
(i) Japan
7.169 Japan argues that the challenged measures each amount to a "financial contribution" in the
form of a "direct transfer of funds" or a "potential direct transfer of funds" under Article 1.1(a)(1)(i) of
the SCM Agreement, or alternatively, a form of "income or price support" within the meaning of
Article 1.1(a)(2) of the SCM Agreement320.
7.170 Recalling that the Appellate Body has observed th at a "direct transfer of funds" may take the
form of a transaction prescribing "reciprocal rights a nd obligations" or a "conditional grant", and that
"what is captured in [Article 1.1(a)(1)(i)] is a government's provision … of funds, irrespective of

320 Japan's first written submission, paras. 185-214; response to Panel question No. 5 (first set); opening
statement at the first meeting of the Panel, para. 24; second written submission, paras. 26-51; and responses to
Panel questions Nos. 21 and 25 (second set). Japan submits, in the alternative, that the measures at issue could
also be characterized as governmental action involving entrustment or direction, within the meaning of
Article 1.1(a)(1)(iv) of the SCM Agreement. Japan's first written submission, fn. 367.

whether this is done gratuitously or in exchange for consideration"
321, Japan submits that the
challenged measures may be best characterized as "direct transfers of funds" because they involve
payments on the part of the OPA that are analogous to a "conditional grant". In this regard, Japan
identifies the following features of the FIT and microFIT Contracts, which Japan submits demonstrate
that the FIT payments are nothing other than govern ment financing provided to FIT generators on the
condition of (i) the construction of a renewable en ergy generating facility that satisfies a specified
Minimum Domestic Content Level; and (ii) the deliver y of electricity generated from this facility to
the grid for use by all Ontarians322:
(a) under the FIT and microFIT Contracts, FIT generators must build a generation
facility while satisfying a requirement to use Ontario-made wind and solar PV
generation equipment in constructing the facility;
(b) in return, the OPA promises to pay a price which is alleged to be above a market
price that guarantees the recovery of costs plus a reasonable return on investment
over a 20-year period;
(c) the OPA pays that price to the generator upon the generator delivering electricity to
the grid, or upon the generator withholding such delivery pursuant to instructions
from the IESO, up to the contract capacity; and
(d) the electricity injected into the grid goes straight to consumers, without the OPA or
any other governmental agency taking po ssession of the electricity, having the right
to take possession of the electricity, using or intending to use the electricity, or
seeking any profit from the resale of the electricity
323.
7.171 According to Japan, the same features also demonstrate that, independent of any actual
payments made under the challenged FIT and microF IT Contracts, the challenged measures may be
characterized as "potential direct transfer[s] of funds" because they guarantee payments for all
electricity generated (or foregone as per IESO instru ction) for the entirety of the contract period,
which for solar PV and windpower projects is 20 years. Thus, Japan argues that the OPA's
commitment to making the envisaged disburse ments under the challenged measures constitutes a
governmental practice involving a "potential direct transfer of funds"324.
7.172 Alternatively, Japan argues that the measures at issue c onstitute "any form of income or price
support in the sense of Article XVI of GATT 1994", w ithin the meaning of Article 1.1(a)(2) of the
SCM Agreement. According to Japan, the challenged measures may be properly characterized as such
because they "contribute" to the income and prices re ceived by FIT generators while at the same time
operate to reduce imports of re newable energy generation equipm ent into Ontario, distorting
international trade325. Japan submits that two particular aspects of the FIT and microFIT Contracts are
consistent with this characterization: (i) the alle gedly above-market prices paid by the Government of
Ontario for electricity; and (ii) the long-term c ontract period (20 years). Japan argues that the
combined effect of these two contractual terms is to enable "FIT generators to construct and operate
their generating facilities in the first place, assured of achieving a return that they would not otherwise

321 Japan's second written submission, para. 43, referring to Appellate Body Report, US – Large Civil
Aircraft (Second Complaint), paras. 617-618 and fn. 1292.
322 Japan's second written submission, para. 45; and resp onses to Panel questions Nos. 5 (first set) and
25 (second set).
323 Japan's second written submission, para. 36; and response to Panel question No. 25 (second set).
324 Japan's first written submission, paras. 192-194.
325 Japan's first written submission, paras. 205-214.

achieve in the market". Thus, Jap an argues that the Government of Ontario "quite literally 'supports'
the 'income' received by generators and the 'price' paid to them for their electricity output"
326.
7.173 Japan rejects Canada's argument that the challenged measures can only be legally
characterized as financial contributions in the fo rm of government purchases of goods. Recalling that
"the classification of a transaction under municipal law is not 'determinative' of whether that measure
can be characterized as a financial cont ribution under Article 1.1(a)(1) of the SCM Agreement", Japan
argues that the fact that the FIT and microFIT Contracts appear to be described as government
"purchases" under Canadian law is not dispositive of the legal characterization of the challenged
measures for the purposes of WTO law 327. In addition, Japan asserts that the OPA never takes
possession of, or exercises control over, or takes title to the electricity supplied under the FIT and
microFIT Contracts, and as such, it does not "purchase" electricity 328. In this regard, Japan maintains
that the FIT Programme is not aimed at promoti ng renewable energy genera tion in order to supply
electricity solely to the OPA or other agencies of the Government of Ontario, or to allow the
Government of Ontario to sell electricity to local distributors and/or consumers. Rather, Japan argues
that the purpose of the FIT Programme is to provide electricity to all consumers in Ontario.
7.174 In any case, Japan argues that even if the Panel were to conclude that the FIT and microFIT
Contracts may be characterized as "purchases [of] goods", the Panel may still find them to be
characterized as "direct transfer[s] of funds", "potenti al direct transfers of funds", or "income or price
support"329. According to Japan, this would be possible because, in Japan's view, the Appellate Body
made clear in US – Large Civil Aircraft (Second Complaint) that a transaction may be covered by
multiple subparagraphs of Article 1.1(a)(1), and that the presence of the word "or" that exists between
Article 1.1(a)(1) and Article 1.1(a)(2) of the SCM Agreement need not necessarily imply that the two
provisions are mutually exclusive.
7.175 Finally, were the Panel to find that the challenged measures could only be properly
characterized as government purchases of goods, as Canada contends, Japan submits that it would still
have met its burden of showing that they satisfy th e first element of the subsidy definition, recalling
that a government purchase of goods constitutes a "fin ancial contribution" under Article 1.1(a)(1) of
the SCM Agreement330.
(ii) European Union
7.176 Not unlike Japan, the European Union submits that the challenged measures may each be
legally characterized as a "financial contribution" in the form of a "direct transfer of funds" within the
meaning of Article 1.1(a)(1)(i) of the SCM Agreem ent, or as a form of "income or price support"
under the terms of Article 1.1(a)(2) of the SCM Ag reement. However, for the European Union, the
most appropriate legal characterization, and the European Union's "primary" submission in these
proceedings, is that the FIT Programme and related contracts constitute a form of "income or price
support". As an alternative to these two lines of argument, the European Union maintains that the
challenged measures might also be characterized as "potential direct transfer[s] of funds" under

326 Japan's first written submission, para. 212.
327 Japan's opening statement at the first meeting of the Panel, para. 25, referring to Appellate Body
Report, US – Large Civil Aircraft (2 nd Complaint), para. 586 (quoting Appellate Body Report, US – Softwood
Lumber IV, para. 56); and second written submission, paras. 29-34.
328 Japan's opening statement at the first meeting of the Panel, para. 23; second written submission,
para. 39; and comments on Canada's response to Panel question No. 47 (second set).
329 Japan's opening statement at the first meeting of the Panel, para. 28; opening statement at the second
meeting of the Panel, para. 7, referring to Appellate Body Report, US – Large Civil Aircraft (2 nd Complaint),
para. 613 and fn. 1287; and comments on Canada's response to Panel question No. 24 (second set).
330 Japan's response to Panel question No. 22 (second set).

Article 1.1(a)(1)(i) of the SCM Agreement, or as governmental action that involves entrustment and
direction in the sense of Article 1.1(a)(1)(iv) inso far as private LDCs make settlement payments on
behalf of the OPA under the terms of the FIT and microFIT Contracts
331.
7.177 The European Union asserts th at the FIT Programme operates as a price support system
whereby the Government of Ontario, through its ag ency, the OPA, contractually agrees with the FIT
generators a price for the electricity they will prod uce (or will be directed not to produce) and then
pays that price directly (through another agency, th e IESO) or indirectly (through LDCs) to the FIT
generators. Moreover, the European Union submits that the nature of the FIT Programme's local
content requirements reduces or even eliminates im ports of equipment and components for renewable
energy generation facilities into Ontario. As such , the European Union argues that the long-term,
guaranteed and allegedly above-mar ket prices paid to the FIT ge nerators under the challenged FIT
and microFIT Contracts provide a "form of income or price support in the sense of Article XVI of
GATT 1994", within the meaning of Article 1.1(a)(2) of the SCM Agreement332.
7.178 According to the European Un ion, the challenged measures may be characterized as "direct
transfer[s] of funds" because, apart from the exp ected delivery of electricity into the Ontario
electricity grid, they involve the OPA making pa yments to the FIT gene rators on an unconditional
basis. The European Union submits that for the purpose of the financial contribution analysis, the
payments committed under the legally binding FI T and microFIT Contracts should be seen as
"granted" or "transferred" payments, even though physically those payments have not yet taken
place333. Recalling that the Appellate Body has observed th at a "direct transfer of funds" may exist in
the form of a "conditional grant" and that "what is ca ptured in [Article 1.1(a)(1)(i)] is a government's
provision … of funds, irrespective of whether this is done gratuitously or in exchange for
consideration", the European Union submits that the essence of the FIT Programme and its related
contracts is that the FIT generators assume a set of obligations (including the construction of a
generation facility and the delivery of electricity into the grid) in return for which they will receive
payment from the OPA. The European Union mainta ins that this renders the challenged measures
"direct transfer of funds"
334.
7.179 The European Union advances two additional alternative arguments to support its view that
the measures amount to "financial contributions". First, relying upon the same arguments advanced in
Japan's first written submission, the European Uni on submits that the challenged measures may also
be characterized as "potential direct transfer[s] of funds"335. Secondly, the European Union argues that
the disbursements made by the LDCs pursuant to the FIT and microFIT Contracts on behalf of the
OPA result in a "financial contribution", in any of the forms discussed above, because they involve
entrustment or direction in the sense of Ar ticle 1.1(a)(1)(iv) of the SCM Agreement 336. However, in
this regard, the European Union maintains that because the OPA is ultimately liable for making these

331 European Union's first written submission, paras. 43-44; and opening statement at the first meeting
of the Panel, paras. 18-19.
332 European Union's first written submission, paras. 32-42; opening statement at the first meeting of
the Panel, para. 14-17; response to Panel question No. 20 (first set); and second writte n submission, paras. 5-18
and 33-38.
333 European Union's first written submission, para. 48 . The European Union's arguments in relation to
the existence of a financial contribution in the form of a "direct transfer of funds" explicitly incorporated all of
the arguments made by Japan in its first written submission. European Union's first written submission, fn. 51.
334 European Union's first written submission, paras. 49-50; opening statement at the first meeting of
the Panel, para. 18; second written submission, paras. 42-43; and opening statement at the second meeting of the
Panel, para. 11, referring to Appellate Body Report, US – Large Civil Aircraft (Second Complaint), para. 617.
335 The European Union explicitly incorporated all of the arguments made by Japan in its first written
submission on this point. European Union's first written submission, para. 53 and fn. 65.
336 European Union's first written submission, para. 44.

payments, the challenged measures wo uld probably be better characterized as a "direct transfer of
funds"
337.
7.180 Finally, although the European Union considers th at the most appropriate characterization of
the challenged measures would not be as a government "purchase [of] goods" within the meaning of
Article 1.1(a)(1)(iii) of the SCM Agreement 338, it argues that such a conclusion would not be an
obstacle to finding that the challenged measures could also be characterized as "any form of income
or price support". In this regard, the European Unio n maintains that the use of the term "or" between
Paragraphs (1) and (2) in Article 1.1(a) of the SCM Agreement does not exclude the possibility that a
measure can fall at the same time under one or the other sub-element. According to the
European Union, the word "or" merely provides for a choice or alternative characterisations to meet
the first element of the definition of "subsidy". The European Union also notes that the terms of
Article 1.1(a)(2) of the SCM Agreement are broa d enough to capture domestic programmes involving
a combination of various forms of financial contribution, bundled together with other features 339.
Similarly, the European Union argues that the ch allenged measures may be characterized as several
types of financial contributions within the sub- headings of Article 1.1(a)(1), recalling certain
observations of the Appellate Body in US – Large Civil Aircraft (Second Complaint) 340. In any event,
were the Panel to consider that the OPA actually " purchases" electricity pursuant to the FIT Contract,
the European Union considers that this would amount to a financial contribution in the form of
purchases of goods under Article 1.1(a)(1)(iii) of the SCM Agreement341.
(iii) Canada
7.181 Canada submits that the complainants have mischaracterized the challenged measures as
financial contributions in the form of "direct transfer[s] of funds" or "potential direct transfer[s] of
funds", or as a form of "income or price support" . Canada argues that the FIT Programme and its
related contracts can only be properly legally charac terized as financial contributions in the form of
"government purchases [of] goods" within th e meaning of Article 1.1(a)(iii) of the
SCM Agreement
342.
7.182 Canada asserts that the FIT programme, and th e FIT and microFIT Contracts, involve the
payment of money by the OPA, which it describes as the "agent" of the Government of Ontario 343, to
renewable electricity generators for the supply of electricity into the Ontario transmission grid 344.

337 European Union's first written submission, paras. 59-61.
338 European Union's second written submission, paras. 41-51. The European Union maintains that the
OPA acts more like an intermediary (an agent or a clea ring house) than an actual purchaser of electricity.
According to the European Union, other market operators purchase electricity either at market rates or above
(i.e. at "regulated" rates), while the OPA pays the alle gedly above-market rates agre ed contractually with the
FIT generators. European Union's opening statement at the first meeting of the Panel, para. 20; and opening
statement at the second meeting of the Panel, para. 12.
339 European Union's opening statement at the first meeting of the Panel, paras. 10-13; second written
submission, paras. 5-18; and opening statement at the second meeting of the Panel, paras. 5-10.
340 European Union's opening statement at the first meeting of the Panel, para. 19, citing Appellate
Body Report, US – Large Civil Aircraft (Second Complaint), fn. 1287.
341 European Union's opening statement at the first meeting of the Panel, paras. 20 and 21; and second
written submission, para. 53.
342 Canada's first written submission (DS412), para s. 116-122; and first written submission (DS426),
paras. 54-63.
343 Canada's first written submission (DS412), paras. 1 and 70; and first written submission (DS426),
para. 2.
344 Canada's first written submission (DS412), para s. 70-81; first written submission (DS426),
paras. 16-22; and responses to Panel questions Nos. 1 and 2 (first set).

Thus, according to Canada, the measures at issue operate to enable the OPA to purchase electricity
from generators using solar PV and wind technology. Canada submits that its legal characterization of
the measures as a government purchase of goods is substantiated by certain sections of the Electricity
Act, 1998 , the Ministerial Direction, various aspects of the FIT and microFIT Rules, the terms and
conditions of the FIT and microFIT Contracts, and a number of other documents and sources
345.
7.183 Canada argues that a transaction properly characterized as a purchase of goods must be
treated as only a purchase of goods for the purpose of Article 1.1(a)(1)(iii) of the SCM Agreement,
even though it will invariably involve a "direct transf er of funds" or a "potential direct transfer of
funds"
346. Relying upon a line of reasoning developed by the panel in US – Large Civil Aircraft
(Second Complaint) , Canada argues that to maintain that a transaction properly characterized as a
government purchase of goods could also be character ized as a direct transfer of funds would be
inconsistent with the principle of effective treaty interpretation347.
7.184 Canada rejects the view advanced by the complainants that a product can only be "purchased"
if the purchaser takes physical possession, control or title over the product, referring to two examples
of product purchasers that do not possess these characteristics in support of its position348. In addition,
Canada submits that the examples of electricity "a ggregators" and "marketers", which Japan presents
as entities that actually purchase electricity in contrast to the OPA, merely highlight that it is possible
to purchase and take title to electricity without physically possessing it 349. In any case, Canada asserts
that to the extent that the electricity produced by FIT generators is delivered into Ontario's
transmission and distribution networks, the Government of Ontario does take physical possession over
it by virtue of Hydro One owning 97% of the transmission lines and the fact that all but three of 80
LDCs are owned by municipal governments 350. Canada also notes that FIT generators have never
been directed by the IESO to refrain from deliver ing electricity into the system, explaining that the
particular clauses in the FIT Contracts that the co mplainants focus upon are standard and that, in any
case, the IESO cannot make such requests for smaller FIT generators or for any microFIT
generators351.
7.185 Finally, Canada maintains that the complainan ts' legal characterization of the challenged
measures as "income or price support" is misplaced for two main reasons. First, relying on the same
reasoning mentioned above from the panel in US – Large Civil Aircraft (Second Complaint), Canada
argues that Article 1.1(a)(2) cannot be interprete d as applying to transactions that are properly
characterized as government purchases of goods becau se this would render Article 1.1(a)(1)(iii)
meaningless, and thereby infringe the principle of e ffective treaty interpretation. Thus, in the same
way that Canada dismisses the complainants' asser tions that the measures at issue involve "direct
transfers of funds", Canada argues that the FIT programme and individual contracts cannot amount to

345 Canada's first written submission (DS412), fns. 135 and 141, and para. 73; first written submission
(DS426), paras. 16-22; opening statement at the firs t meeting of the Panel, pa ras. 11-44; second written
submission, paras. 15-22; opening statement at the second meeting of the Panel, para. 20; and response to Panel
question No. 25 (second set).
346 Canada's first written submission (DS412), para. 120.
347 Canada's first written submission (DS412), para s. 117-119; and first written submission (DS426),
para. 55.
348 Canada's opening statement at the first meeting of the Panel, para. 41.
349 Canada's opening statement at the second meeting of the Panel, para. 26.
350 Canada's response to Panel question No. 21 (first set); and opening statement at the second meeting
of the Panel, paras. 30-32.
351 Canada's response to Panel question No. 21 (first set); and opening statement at the second meeting
of the Panel, paras. 30-32.

a form of "income or price support" because th is would render Article 1.1(a)(1)(iii) redundant
352.
Secondly, Canada submits that the reference to "a ny product" in Article XVI of the GATT is not a
reference to unsubsidized input goods, but rather a reference to an increase in exports of "any
product" that is the subject of the alleged subsidy being notified under this provision or a decrease in
imports of foreign products impacted by the notified subsidy. Thus, in order for the FIT Programme to
be properly characterized as a form of "income or price support", Canada argues that complainants
would need to show that trade in electricity (the allegedly subsidized good) is affected by the alleged
subsidy, not trade in renewable electricity generation equipment353.
(b) Arguments of the third parties
(i) Australia
7.186 Australia agrees with the arguments of the comp lainants with respect to the classification of
the FIT Contracts as a form of income or price support under Article 1.1(a)(2) of the
SCM Agreement. Alternatively, Australia submits that the Panel may characterize the FIT Contracts
as "purchases of goods" under Article 1.1(a)(1)(iii). Australia argues that in determining whether a
financial contribution is a purchase of goods, it is not necessary for the government to use the goods
purchased. Rather, a purchase of goods within the mean ing of Article 1.1(a)(1(iii) occurs where a
government pays a person or entity for the provision of goods. Thus, according to Australia, in these
disputes the contract rate received by FIT generato rs could be characterized as consideration for the
electricity supplied to the Ontario electricity market354.
(ii) China
7.187 China disagrees with the European Union's use of export restrictions as examples of "income
or price support", within the meaning of Article 1. 1(a)(2) of the SCM Agreement, for the following
reasons. First, this phrase "does not exhaust all gover nment interventions that may have an effect on
income or price, such as tariffs and quantitative r estrictions." Second, the application of the "effect"
test to the existence of an "income or price suppor t" would exaggerate the reasonable scope of this
phrase. Third, as Article XI of the GATT 1994 prov ides for the "general elimination of quantitative
restrictions", it is questionable whether the concep t of "income or price support" seeks to place such
governmental actions within the scope of the SCM Agreement. Fourth, the concept of "market price
support" included in Annex 3 of the Agreement on Agriculture indicates that direct control by the
government over the domestic price is required to de monstrate the existence of "price support". Thus,
in China's view, the analysis should focus on the natu re of the direct governmental action, rather than
on the movement in prices. Finally, the European Union's reliance on Paragraph 7.430 of the Panel
Report in China – Raw Materials fails to observe the footnote stating that the term "subsidy" included
in that paragraph does not implicate a legal conclusion under the SCM Agreement355.
(iii) El Salvador
7.188 El Salvador emphasizes the role played by LDCs within the FIT Programme, and the
importance of deciding whether they are owned by the government. El Salvador considers that the
Appellate Body Report in US – Anti-Dumping and Countervailing Duties (China) may contribute to

352 Canada's first written submission (DS412), para s. 121-122; and first written submission (DS426),
paras. 59-60.
353 Canada's first written submission (DS426), para. 62.
354 Australia's third-party submission (DS412), paras. 4-10; third-party submission (DS426), paras. 4-
10; and third-party statement (DS412 and DS426), paras. 3-10.
355 China's third-party submission (DS426), paras. 3-10; and third-party statement (DS412 and DS426),
paras. 5-8.

the Panel's examination of this matter. Turning to the notion of "income or price support", El Salvador
considers that the Panel should be provided with objective parameters to determine whether a
reduction of imports of renewable energy generation equipment has occurred. El Salvador suggests
that methodologies used for purposes of other WTO rules may be employed by the Panel to determine
"income or price support", citing as an example the methodology used in the field of safeguards to
examine the correlation between increased injury and industry
356.
(iv) European Union (in WT/DS412)
7.189 As a third party in WT/DS412, the European Union considers that the FIT Programme
amounts to a subsidy as defined in Article 1.1 of th e SCM Agreement. In the European Union's view,
the FIT Programme implies a financial contribution by the Government of Ontario either as a direct
transfer of funds or a potential direct transfer of funds. The European Union contends that the
commitment by the Canadian Province of Ontario to pay the agreed price for the electricity generated
by FIT generators would be bette r characterised as a "direct transf er of funds" in the sense of
Article 1.1(a)(1)(i) of the SCM Agreement beca use future payments are made unconditionally.
Alternatively, the European Union considers that the FIT Programme provides a form of income or
price support to FIT generators through guaranteed prices in the sense of Article 1.1(a)(2)357.
(v) Japan (in WT/DS426)
7.190 As a third party in WT/DS426, Japan argues that, to the extent Article XVI:1 of the
GATT 1994 may serve as relevant context for interpreting "income or price support" under
Article 1.1(a)(2) of the SCM Agreement, it does not support Canada's view that the "income or price
support" must be provided to the goods, the trade of which is actually impacted by the support. Japan
claims that Canada offers no basis for its interpreta tion that the term "any product" is a reference to
the "subject of the alleged subsidy", and may not be a reference to "unsubsidized input goods". Japan
notes that Article XVI:1 uses the term " any product", and not a term such as " like product" (emphasis
added). Japan considers that the term "any prod uct" in Article XVI:1 refers to every product,
including unsubsidized input goods, the exports or imports of which may increase or decrease as a
result of the income or price support provided. Thus , Japan contends that "income or price support"
provided to a product will fall within the definition of a "subsidy" if it increases exports or decreases
imports of any product358.
(vi) Mexico
7.191 Mexico notes that the SCM Agreement does not co ntain a provision similar to Article III:8(a)
of the GATT 1994 to exclude governmental purchases from its scope. However, Mexico contends that
it is questionable whether a governmental purchase, in which the government receives something in
return for a payment, will amount to a financ ial contribution within the meaning of the
SCM Agreement359.

356 El Salvador's third-party submission (DS426), paras. 5-16; and third-party statement (DS412 and
DS426), paras. 3-11.
357 European Union's third-party submission (DS412), paras. 19-20.
358 Japan's third-party submission (DS426), paras. 16-18.
359 Mexico's third-party submission (DS412), para. 20; and third-party submission (DS426), para. 20.

(vii) Norway
7.192 Norway expresses support for the position advanced by the Kingdom of Saudi Arabia urging
the Panel to respect the principles defined by the Appellate Body with rega rds to the terms "public
body" and "governmental control"
360.
(viii) The Kingdom of Saudi Arabia
7.193 Saudi Arabia refers to the Appellate Body Report in US – Anti-Dumping and Countervailing
Duties (China) , setting out that a "public body", within the meaning of Article 1.1(a)(1) of the
SCM Agreement, is an entity that possesses, exercises or is vested with governmental authority.
Saudi Arabia contends that the unique defining elem ent of "governmental authority" is the power to
command or compel private bodies. Saudi Arabia consider s that if an entity's role is merely to follow
a governmental mandate and it is powerless as to the manner in which it pursues governmental
functions, then it has no "governmental authority" and is instead merely acting at the direction of the
government. Saudi Arabia contends that the governme nt's exercise of "meaningful control" over an
entity alone is not sufficient to determine that the entity is a public body, as governmental control is
merely one element of evidence that may be consider when determining "governmental authority"361.
(c) Evaluation by the Panel
(i) Introduction
7.194 The complainants' assertions about the prope r legal characterization of the challenged
measures under Articles 1.1(a)(1) and 1.1(a)(2) of the SCM Agreement are largely in contrast to those
advanced by Canada. Recent WTO jurisprudence sugg ests that when faced with such a situation, a
panel should first determine the proper factual char acterization of the meas ures at issue, before
turning to examine whether those me asures, in the light of their proper factual characterization, fall
within the scope of Article 1.1(a) of the SCM Agreement 362. In undertaking the task of properly
characterizing a challenged measure, a panel "must thoroughly scrutinize the measure before it, both
in its design and in its operation, a nd identify its principal characteristics" 363. Moreover, "[i]n making
its objective assessment of the applicability of speci fic provisions of the covered agreements to a
measure properly before it, a panel must identify all relevant characteristics of the measure, and
recognize which features are the most central to that measure itself, and which are to be accorded the
most significance for purposes of characterizing the relevant [measure] and, thereby, properly
determining the discipline(s) to which it is subject under the covered agreements" 364. While the
classification of a transaction under municipal law may inform a panel's assessment, it is not
"determinative"365 of a challenged measure's proper legal characterization under WTO law. With these
considerations in mind, we proceed to evaluate the merits of the parties' arguments.

360 Norway's third-party statement (DS412 and DS426), para. 7.
361 Saudi Arabia's third-party submission (DS412), paras. 2-17; third-party submission (DS426),
paras. 2-17; and third-party statement (DS412 and DS426), paras. 2-7.
362 Appellate Body Report, US – Large Civil Aircraft (Second Complaint), paras. 585 and 589.
363 Appellate Body Reports, China – Auto Parts, para. 171.
364 Appellate Body Reports, China – Auto Parts, para. 171 (emphasis original).
365 Appellate Body Report, US – Softwood Lumber IV, para. 56.

(ii) Factual characterization of the measures
The legal bases of the FIT Programme
366 and the mandate and powers of the OPA
7.195 We recall that the FIT Programme was formally launched by the OPA on 24 September 2009
pursuant to the Direction of the Ontario Minister of Energy and Infrastucture 367 acting under the
authority of the Electricity Act of 1998 368, as amended by the Green Energy and Green Economy Act
of 2009369. Section 25.35(1) of the amended Electricity Act of 1998 provides that the "Minister may
direct the OPA to develop a feed-in tariff program that is designed to procure energy from renewable
energy sources". The same section defines a "feed-i n tariff program" as a "pr ogram for procurement,
providing standard program rules, standard contracts and standard pricing …" 370. Pursuant to this
statutory authority, the Minister of Energy and Infrastructure called upon the OPA to establish a
"feed-in tariff ("FIT") program that is designed to procure energy" through "a 20-year power purchase
agreement in respect of all renewable fuels other than waterpower …"
371. This direction specified that
the FIT Contract "should require the developer to design, build and operate a renewable generating
facility and in exchange should provide for guara nteed, long-term pricing for the output of the
renewable generating facility"372.
7.196 The OPA's power to enter into such "contracts" is set out in section 25.35(4) of the amended
Electricity Act of 1998 , which grants the OPA authority to enter into "contracts relating to the
procurement of electricity supply and capacity us ing alternative energy sources or renewable energy
sources to assist the Government of Ontario in achieving goals in the development and use of
alternative or renewable energy technology and resources". This authority is repeated in
Section 25.35(1)(a); and, confirming the OPA's po wer to enter into "contracts relating to the
procurement of electricity", Section 25.20(3) of the amended Electricity Act of 1998 grants the OPA
the right to "recover from consumers its cost s and payments under procurement contracts"
373. These
powers are intended to enable the OPA to pursue its mandated activities, which include "to engage in
activities to facilitate the diversification of sour ces of electricity supply by promoting the use of
cleaner energy sources and technologies, including alternative sources and renewable sources" and "to
establish system-wide goals for the amount of electricity to be produced from alternative energy
sources and renewable energy sources"
374.

366 A more general description of the FIT Programme, including its objectives and how it is intended to
operate, is set out in the introduction to our findings at paras. 7.64-7.68.
367 Minister's 2009 FIT Direction, Exhibit JPN-102.
368 Electricity Act of 1998, Exhibit JPN-101, Sections 25.32 and 25.35.
369 Green Energy Act of 2009, Exhibit JPN-101, Sections 5(2) and 7.
370 Electricity Act of 1998 , Exhibit JPN-101, Section 25.35(4). More generally, Section 25.32(4.1) of
the Electricity Act of 1998 provides that the "Minister may direct the OPA to undertake … any other initiative or
activity that relates to, (a) the procurement of electricity supply or capacity from renewable energy sources…"
371 Minister's 2009 FIT Direction, Exhibit JPN-102, pp. 1-2.
372 Minister's 2009 FIT Direction, Exhibit JPN-102, p. 2.
373 The OPA's powers to enter into "procurement " contracts for electricity under the amended
Electricity Act of 1998 are also referred to in Sections 78.3 and 78.4 of the Ontario Energy Board Act of 1998
and Ontario Regulation 578/05 . Ontario Regulation 578/05 , as amended, (" Ontario Regulation 578/05 "),
Exhibit JPN-154.
374 Electricity Act of 1998, Exhibit JPN-101, Section 25.2(1).

7.197 That the OPA has the mandate and power to ente r into "procurement" contracts for the supply
of electricity is also evident from various doc uments prepared by the OPA and other Ontario
governmental agencies
375.
The FIT Contract
7.198 The FIT Contract describes the contractual re lationship between the OPA and the legal entity
or entities responsible for the approved renewable ener gy electricity project (the "Supplier"). It is
comprised of a project-specific cover page (which provides a summary of a number of key project
facts and characteristics including, where applicable, the relevant "domestic content level"), a set of
general terms and conditions 376, a series of exhibits addressing a range of formal and substantive
matters relating to each project, a nd an appendix of standard defin itions. By entering into the FIT
Contract, the OPA and the Supplier "mutually agree to be bound" by its term s and conditions "[f]or
valuable consideration" 377. The Standard Definitions Appendix suggests that the FIT Contract is a
"power purchase agreement"378.
7.199 In order to fully understand the contractual pa rties' rights and obligations, the FIT Contract
must be read together with the FIT Rules. Th ese set out, in varying degrees of detail over 42 pages
comprising thirteen sections and four exhibits, th e rules and procedures that govern the operation of
the FIT Programme. In particular, the FIT Rules describe the project elig ibility and application
requirements, the application review and acceptance procedures, and the tests for determining what
kind of connection, if any, can be established betw een the relevant generation facility and the Ontario
electricity system379. They also provide an overview of the form of the FIT Contract and how it should
be executed, including an explanation of some of its key provisions such as, for example, those
relating to the "Minimum Required Domestic Content Level" that must be achieved by qualifying
solar PV and windpower projects 380. In addition, the FIT Rules identify the relevant prices and
describe the processes to be used for settling the Contract Payments381.
7.200 Apart from the delivery of electricity into the Ontario power grid, one of the fundamental
obligations undertaken by the Supplier under a FIT C ontract is to design, build and own or lease a

375 For example, see OPA Generation Procurement Update, Exhibit JPN-21; A Progress Report on
Electricity Supply, Fourth Quarter 2010, Ontario Power Authority, ("OPA Progress Report: Fourth Quarter
2010"), Exhibit JPN-26, p. 1 (disclosing that "4,709 MW were procured from existing generating facilities");
OPA Progress Report: Second Quarter 2011, Exhibit JPN-28, p. 1 (disclosing that "4,716 MW were procured
from existing generating facilities"); OPA's Generation Pr ocurement Cost Disclosure, Exhibit JPN-29 (stating
that "[t]he OPA has procured a generation portfolio consisting of various generation technologies and capacities
for the province of Ontario"); Highlights of the Electricity Restructuring Act of 2004 , Exhibit JPN-9, p. 2
(stating that "[t]he OPA is responsible for developing an integrated power system plan and procurement process
for electricity supply"); and OEFC: Management of Power Supply Contracts, Exhibit JPN-22, p. 2 (referring to
"Ontario Power Authority supply procurements"). See also from the private sector, Overview of Electricity
Regulation in Canada, Exhibit JPN-7, p. 18 (stating that "[t]he OPA … is … primarily responsible for …
procuring new generation through various forms of procurement processes").
376 The FIT Contract also envisa ges the possibility that , where necessary, a "Special Terms and
Conditions" schedule could be added to the Contract. FIT Contract, Exhibit JPN-127, Schedule 2.
377 FIT Contract, Exhibit JPN-127, Cover Page.
378 The Standard Definitions Appendix defines "Pre-COD Facilities" as "the Facility, or the Facility and
other generation facilities that are the subject of a FIT Contract or other power pu rchase agreement with the
OPA similar in nature to the FIT Contract …" (emphasis added). FIT Standard Definitions, Exhibit JPN-135,
Definition No. 192.
379 FIT Rules, Exhibit JPN-119, Sections 2-5.
380 FIT Rules, Exhibit JPN-119, Section 6.
381 FIT Rules, Exhibit JPN-119, Sections 7-8. In addition, the FIT Rules set out requirements in respect
of "program review and amendments", "confidentiality", and "program launch".

qualifying renewable energy electricity generation f acility ("Contract Facility") and to operate and
maintain it in accordance with all relevant IESO Market Rules, laws and regulations
382. These
requirements not only serve to ensure that the Supplie r delivers electricity into the grid but they also
assure the OPA that the conditions for its delivery ar e satisfied according to the relevant standards.
When building a Contract Facility that utilizes sola r PV or windpower technology that has a capacity
to produce more than 10 kW of electricity, the Supplie r must additionally ensure that it is developed
and constructed in such a way that satisfies the "Minimum Required Domestic Content Level"383.
7.201 Other notable obligations on the Supplier in clude assigning all Environmental Attributes
associated with the Contract Facility to the OPA384, transferring half of all payments received from the
Canadian Government under the "ecoENERGY for Renewable Power Program" to the OPA 385,
paying all taxes on the electricity deliver ed up to the relevant Connection Point 386, and ensuring that
the Contract Facility is appropriately connected to the Ontario electricity system. With particular
respect to the latter, Articles 2.3(a) and 2.7(b) of th e FIT Contract direct the Supplier to arrange, at its
own cost, for the Contract Facility to be connected to the relevant connection point in order to permit
the successful delivery of the electricity it produces into the IESO-controlled transmission grid or the
distribution system387. In order to do this, the Supplier must first identify a proposed connection point,
from the available options identified by the OPA on a semi-annual basis388, that matches the particular
characteristics of the Contract Facility. However, it is the OPA that decides, together with the IESO as
well as the relevant licensed transmitters or distribut ors, whether any particular Contract Facility can
be connected to the proposed connection point. FIT projects may be connected to the IESO-controlled

382 FIT Contract, Exhibit JPN-127, Articles 2.1(a) and 2.7(a); and FIT Rules, Exhibit JPN-119,
Section 6.3(a). The relevant laws and regulations include those found in the Distribution System Code, the
Transmission System Code and the Connection Agreement.
383 FIT Contract, Exhibit JPN-127, Article 2.2(f).
384 FIT Rules, Exhibit JPN-119, Section 7.3(c); and FIT Contract, Exhibit JPN-127, Article 2.10.
"Environmental Attributes" are defined as inter alia "the interests and rights arising out of attributes or
characteristics relating to the environmental impacts a ssociated with a Renewable Generating Facility or the
output of a Renewable Generating Facility, now or in the future, and the right to quantify and register these with
competent authorities, including: (a) all right, title, interest and benefit in and to any renewable energy
certificate, credit, reductio n right, offset, allocated pollution right, emission reduction allowance or other
proprietary or contractual right, whether or not tradable, resulting from the actual or assumed displacement of
emissions by the production of Electricity from the Contract Facility as a result of the utilization of renewable
energy technology; (b) rights to any fungible or non-fungible attributes or entitlements relating to environmental
impacts, whether arising from the Contract Facility itself, from the interaction of the Contract Facility with the
IESO-Controlled Grid, a Distribution System or the Host Facility …; (c) any and all rights, title and interest
relating to the nature of an energy source (including a Renewable Fuel) as may be defined and awarded through
Laws and Regulations or voluntary programs, including all Emission Reduction Credits; and (d) all revenues,
entitlements, benefits and other proceeds arising from or related to the foregoing…" FIT Standard Definitions,
Exhibit JPN-135, Definition No. 85.
385 FIT Rules, Exhibit JPN-119, Section 7.3(b); and FIT Contract, Exhibit JPN-127, Article 3.2 ("If the
Supplier receives any payments under the ecoENERGY for Renewable Powe r Program attributable to the
Contract Facility, the Supplier, within 30 days of receipt of such pa yment, shall pay to the OPA 50% of the
amount of such payment, failing which, the OPA may se t off any such payments due to the OPA against any
amounts payable by the OPA to the Supplier").
386 FIT Contract, Exhibit JPN-127, Ar ticle 3.4. In essence, the "Connection Point" is defined as the
point where electricity from the Contract Facility directly or indirectly enters the Distribution System or the
IESO-Controlled Grid. FIT Standard Definitions, Exhibit JPN-135, Definition No. 54. All taxes payable on the
Delivered Electricity from the Connection Point onwards ar e to be paid by the OPA. In addition, the OPA is
liable for any Sales Taxes payable in connection with th e Delivered Electricity. FIT Contract, Exhibit JPN-127,
Article 3.5.
387 FIT Contract, Exhibit JPN-127, Articles 2.3(a) and 2.7(b).
388 FIT Rules, Exhibit JPN-119, Section 5.1(a).

transmission grid or the distribution system 389. However, typically, FIT Projects with a capacity
greater than 10 MW will be connected to the IESO-controlled transmission grid390.
7.202 The FIT Contract Price is established by the OPA and, in principle, revised once every
two years for unexecuted projects 391. Such prices are intended to cover the development costs plus a
reasonable rate of return over the term of the FIT Contract for projects meeting specific assumptions
relating to cost and efficiency 392. The Contract Prices applicable to the measures at issue were
determined using a discounted cash flow model ta king into account "reasonable" capital costs (i.e.
"project development, construc tion and equipment costs"), "reaso nable" operating and maintenance
costs (i.e. "project staffing and maintenance co sts, including on-going capital expenditures and
property taxes") and "reasonable" connection costs (i.e. "project connection costs, no significant
upgrade costs assumed") 393. In 2009, the rate of return used to establish the FIT Price Schedule was
"approximately 11%" 394. For certain technologies, a specified percentage of the Contract Price will
escalate annually based on increases in the consumer price index 395. In addition, qualifying
Aboriginal396 and Community 397 Participation Projects will receive a "Price Adder" depending upon
their respective Aboriginal and Community Participation Levels 398. All relevant prices are published
by the OPA on its website in the FIT Price Schedules 399, and these define the Contract Prices under
the FIT Contract.
7.203 For each kWh of electricity that is delivered into the Ontario electricity system (or not
delivered under the instruction of the IESO), a Su pplier will receive the Contract Payment (or the
Additional Contract Payment) defined in Exhibit B of the FIT Contract as a function of the FIT
Contract Price400. Put simply, where a Contract Facility is an "IESO market participant", because, for

389 FIT Rules, Exhibit JPN-119, Section 2.1(a)(vii).
390 FIT Programme Overview, Exhibit JPN-37, p. 18.
391 FIT Rules, Exhibit JPN-119, Sections 7.1(a), 7.1(b), and 10.1(a).
392 FIT Rules, Exhibit JPN-119, Section 7.1(a). The Contract Price does not include any Sales Taxes
payable by the OPA in connection with the Delivered Elec tricity. As already noted, where Sales Tax is payable,
it shall be paid by the OPA. FIT Contract, Exhibit JPN-127, Article 3.5.
393 Proposed Feed-In Tariff Price Schedule, Stakeholder Engagement - Session 4, OPA, ("Proposed FIT
Price Schedule Presentation"), Exhibit CDA-46, Slides 22-28.
394 Canada's responses to Panel questions Nos. 26 (first set) and 12 (second set); Proposed FIT Price
Schedule Presentation, Exhibit CDA-46, Slide 30.
395 FIT Rules, Exhibit JPN-119, Section 7.2.
396 Section 9.1(a) of the FIT Rules, Exhibit JPN-119, defines an "Aboriginal Community" as inter alia
"(i) a First Nation that is a 'Band' as defined in the In dian Act (Canada); (ii) the Métis Nation of Ontario or any
of its active Chartered Community Councils; …"
397 Section 9.1(e) of the FIT Rules, Exhibit JPN-119, defines an "Community Investment Member" as
inter alia "(i) one or more individuals Resident in Ontario; (ii) a Registered Charity with its head office in
Ontario; (iii) a Not-For-Profit Organization with its head office in Ontario; …"
398 Section 9.1(b) of the FIT Rules, Exhibit JPN-119 , defines the "Aboriginal Participation Level" as
"the percentage of the Economic Interest in the Applicant or the Supplier that is held by an Aboriginal
Community." Similarly, Section 9.1(f) of the FIT Rules, Exhibit JPN-119, defines the "Community Participation
Level" as inter alia "the percentage of the Economic Interest in the Applicant or the Supplier that is held by
Community Investment Members …"
399 2011 FIT Price Schedule, Exhibit JPN-30; and 2010 microFIT Price Schedule, Exhibit JPN-31.
400 All transmission-connected Suppliers and distribu tion-connected Suppliers with a capacity of more
than 5 MW will receive the Additional Contract Paymen t for electricity they are directed by the IESO not to
deliver into the Ontario electricity grid for system safe ty and reliability reasons. FIT Contract, Exhibit JPN-127,
Exhibit B, Types 1, 2, and 3A, Article 1.5. ("Insofar as the IESO issues instructions to reduce all or part of the
output of the Contract Facility on an economic basis in order to mitigate over generation on the entire IESO-
Controlled Grid …" an Additional Contract Payment shall be made to the Supplier).

example, it is connected to the IESO-controlled grid (i.e. connected to the transmission network
401),
the Contract Payment is defined as the relevant Contract Price multiplied by the Hourly Delivered
Electricity402, minus the HOEP, minus 80% of the total net revenues that a Supplier may receive from
the sale of Future Contract Related Products 403. Where, on the other hand, the Contract Facility is not
an "IESO market participant", and is directly or i ndirectly connected to the distribution network, the
Contract Payment is defined as the relevant C ontract Price multiplied by the Hourly Delivered
Electricity, minus 80% of the total net revenues th at a Supplier may receive from the sale of Future
Contract Related Products 404. However, for Contract Facilities c onnected to the distribution network
that have a capacity greater than 5 MW, the Cont ract Payment, in situations when the HOEP is
negative, is defined as the relevant Contract Pr ice multiplied by the Hourly Delivered Electricity,
minus the absolute value of the HOEP, minus 80% of the total net revenues that a Supplier may
receive from the sale of Future Contract Related Products405.
7.204 The FIT Rules provide that the OPA is responsib le for making all Contract Payments to the
Supplier406. However, the typical settlement processes th rough which a Supplier will be paid (either
explicitly or implicitly referred to in the FIT Contr act and FIT Rules) envisage that in addition to the
OPA, the IESO and relevant LDCs acting on behalf of the OPA will also play a role. In particular, for
transmission-connected Contract Facilities, the FIT Rules specify that payments under the FIT
Contract "will be adjusted by subtracting the greater of the [HOEP] and zero in respect of all Hourly
Delivered Electricity to account for either payments made in accordance with the IESO Market Rules
or benefits conferred on the Host Facility, as applicable" 407. The IESO Market Rules govern the
IESO-controlled grid, including the terms and c onditions pursuant to which payments due to
electricity generators participating in the "IESO-adm inistered markets" will be settled. For a Contract
Facility that is connected to the IESO-controlled transmission grid this means that whenever the
HOEP is positive, the relevant Supplier will receive the (HOEP) portion of the Contract Price from the
IESO. When the HOEP is less than the Contract Pri ce, the outstanding portion of the Contract Price
minus 80% of any Future Contract Relate d Product sales (i.e. the GA) will be paid by the OPA . On
the other hand, it will be for the Supplier to pay the GA to the OPA when the HOEP is greater than
the Contract Price408.

401 Approximately 97% of transmission lines are owned and maintained by Hydro One, an agent of the
Government of Ontario. Canada's opening statement at the second meeting of the Panel, para. 27; and response
to Panel question No. 13 (second set).
402 In essence, "Hourly Delivered Electricity" is the electricity generated by the Contract Facility that is
successfully injected into the transmission or distribution system dur ing any hour. FIT St andard Definitions,
Exhibit JPN-135, Definition No. 118.
403 FIT Contract, Exhibit JPN-127, Exhibit B, Types 1 and 2, Article 1.4. "Future Contract Related
Products" are defined as "all Related Products that relate to the Contract Facility and that were not capable of
being traded or sold by the Supplier in the IESO-Administered Markets or other markets on or before the
Contract Date". FIT Standard Defin itions, Exhibit JPN-135, Definition No. 106. "Related Products" are defined
as products and services, including transmission rights, "that may be provided by the Contract Facility from time
to time, … that may be traded or sold in the IESO-Administered Markets or other markets, or otherwise sold,
and which shall be deemed to include products and serv ices for which no market ma y exist, such as capacity
reserves." Article 3.3 of the FIT Co ntract, Exhibit JPN-127, provides that the Supplier "shall sell, supply or
deliver all Future Contract Related Products as requested, directed or approved by the OPA".
404 FIT Contract, Exhibit JPN-127, Exhibit B, Type 3A, Article 1.4(a)(i) and (b); and Type 3B,
Article 1.4.
405 FIT Contract, Exhibit JPN-127, Exhibit B, Type 3A, Article 1.4(a)(ii) and (b).
406 FIT Rules, Exhibit JPN-119, Section 6.3(a) and 8.4; and FIT Contract, Exhibit JPN-127, Article 3.1.
407 FIT Rules, Exhibit JPN-119, Section 8.1(a). This is reflected in FIT Contract, Exhibit JPN-127,
Exhibit B, Types 1 and 2, Article 1.4(a).
408 FIT Rules, Exhibit JPN-119, Section 8.1(b), reflected in FIT Contract, Exhibit JPN-127, Exhibit B,
Types 1 and 2, Article 1.4(c).

7.205 For distribution-connected Contract Facilities, the FIT Rules stipulate that the OPA "will pay
the Supplier any amounts owing under the FIT Cont ract through settlement between the Supplier and
the applicable LDC on a periodic basis in accordance with the applicable LDCs monthly, quarterly or
other periodic billing cycle"
409. In other words, distribution-connected projects will be paid directly by
the LDC to which they are connected. However, afte r making this payment, the relevant LDC will, in
accordance with the Retail Settlement Code and the IESO Market Manual 410, seek to recover any
amounts paid in excess of the wholesale price 411 of electricity for the electricity delivered by the
Supplier in question, from the OPA, through the IESO412.
7.206 The FIT Contract envisages that for Contr act Facilities connected to the IESO-controlled
transmission grid, the HOEP portion of the Contract Price will be paid by the IESO through the
operation of the settlement process regulated by the IESO Market Rules. The same generators will
receive the outstanding portion of the Contract Price minus 80% of net revenues from the sale of
Future Contract Related Products (i.e. the Contract Payment) from the OPA , which will form part of
the global adjustment. In other words, the Contr act Payment for transmission-connected projects will
be included in the global adjustment; and the di fference between the Cont ract Payment and the
Contract Price will, in the absence of any net reve nues from Future Contract Related Products, be the
HOEP, which will be paid to a FIT Supplier by the IESO as a result of its st atus as an "IESO market
participant". On the other hand, for Contract Facilities that are directly or indirectly connected to the
distribution system, the Contract Payment (i.e. th e Contract Price multiplied by the Hourly Delivered
Electricity, minus 80% of net revenues from the sal e of Future Contract Related Products) will be
made by the associated LDC, on behalf of the OPA, and will also be included in the global
adjustment.
7.207 Notwithstanding these settlement arrangements, the OPA may decide "at its sole discretion"
to change them "at any time and from time to time " for the Programme as a whole or in respect of one
or more projects or LDCs413. Moreover, whatever settlement arrangements may operate, the OPA will
remain liable to make the Contract Payments414.
7.208 Thus, although there is no specific provision in the FIT Contract that explicitly defines its
object, it is evident when it is read as a whole, in the light of the FIT Rules, that its fundamental
purpose is the delivery of electricity produced from a Contract Facility that satisfies the "Minimum
Required Domestic Content Level" into the Ontario electricity system, in return for which, the OPA
undertakes to pay the Supplier the remuneration defi ned under the Contract through the operation of

409 FIT Rules, Exhibit JPN-119, Section 8.2(a). See also FIT Contract, Exhibit JPN-127, Exhibit B,
Type 4, Article 1.4.
410 IESO Market Manual Part 5.5, Exhibit JPN-82, Section 1.6.11.2.
411 The wholesale price is the price that the relevant LDC should pay on the "wholesale market" for the
electricity in question.
412 This settlement process is more fully described by Japan in its first written submission. See Japan's
first written submission, paras. 145-147.
413 FIT Rules, Exhibit JPN-119, Section 8.4.
414 FIT Rules, Exhibit JPN-119, Sections 6.3(a) and 8.4.

one or more different settlement mechanisms for a period of 20 years
415. Article 3.5 of the FIT
Contract appears to describe this transaction as a "purchase" of electricity416.
The microFIT Contract
7.209 The microFIT Contract "governs [the] OPA's procurement of electricity" 417 from the entity or
entities responsible for an approved project (the "S upplier"). It defines the contractual relationship
between the OPA and the Supplier on the basis of a set of standard terms and conditions that are much
simpler and less detailed when compared with those used in the FIT Contract. This reflects the OPA's
stated intention of providing, through the operation of the microFIT stream of the FIT Programme, "a
simplified approach for enabling the development of renewable micro-generation projects in Ontario",
with a view to attracting participants such as homeowners, farmers and small businesses418.
7.210 As with the FIT Contract, the microFIT Contract must be read together with the microFIT
Rules in order to be fully understood. The microFIT Rules set out the basic rules and procedures that
must be followed by microFIT Project applicants and participants. They describe the relevant
eligibility requirements and the application and pr oject connection processes, and outline some of the
key provisions of the microFIT Contract with respect to duration, price and the settlement of
payments419.
7.211 A Supplier operating a microFIT Project must own or lease a "micro-generation project" (the
"Facility") for the term of the microFIT Contract, and ensure that it delivers electricity into the
Ontario electricity system in accordance with all relevant laws and regulations 420. In addition, when
the Facility is based on solar PV technology, the Supplier must ensure that it is developed and
constructed in such a way that satisfies the "Minimum Required Domestic Content Level"421.
7.212 A microFIT Supplier must assign all Environmental Attributes associated with the Facility to
the OPA422. It must also, at its own cost, enter into a Connection Agreement with a relevant LDC 423,

415 This understanding is also consistent with how the FIT Contract and Settlement process is described
in the FIT Programme Overview: "The [FIT] contract requires the OPA to pay the contract holder for the
electricity produced by the project"; for distribution- connected projects, "the lo cal distribution company will
make payments to the proponents on a regular basi s according to the normal b illing cycle of the local
distribution company"; and for transmission-connected proj ects, payments will be "settled directly by the OPA
and the Independent Electricity System Operator". FIT Programme Overview, Exhibit JPN-37, Section 6.4.
416 In particular, Article 3.5 of the FIT Contract, Exhibit JPN-127, reads in relevant part: "If any Sales
Tax is payable in connection with the Delivered Electricity … purchased hereunder, such Sales tax shall be paid
by the OPA" (emphasis added). Article 3.4 of the FIT Contract, Exhibit JPN-127, in dicates that the Supplier
"sells" electricity under the transaction: "The Supplier is liable for … all Taxes applicable to the Delivered
Electricity … sold hereunder …" (emphasis added). The "D elivered" electricity is defined as the "Electricity …
delivered to the Connection Point". FIT Standard Definitions, Exhibit JPN-135, Definition No. 65.
417 Ontario Power Authority, microFIT Contract, Version 1.6.1, 10 August 2011, ("microFIT
Contract"), Exhibit JPN-164, Article 2.1.
418 microFIT Programme Overview, Exhibit JPN-38, p. 1 and Section 1.2(a); and microFIT Rules,
Exhibit JPN-157, Section 1.1.
419 microFIT Rules, Exhibit JPN-157, Sections 1-5.
420 microFIT Contract, Exhibit JPN-164, Articles 6.2 and 6.4; and microFIT Rules, Exhibit JPN-157,
Sections 2.1(a) and 6.1(a).
421 microFIT Contract, Exhibit JPN-164, Article 6.4.4.
422 microFIT Contract, Exhibit JPN-164, Article 5. "Environmental Attributes" are defined as "the
interests and rights arising out of attributes or charact eristics relating to the environmental impacts associated
with the Facility, now or in the future, and the right to quantify and register these with competent authorities,
including: (a) all right, title, interest and benefit in an d to any renewable energy certificate, credit, reduction
right, offset, allocated pollution right, allowance, emission reduction allowa nce or allowance set aside or other

in the absence of which, it will not be offered a microFIT Contract 424. A microFIT Facility cannot be
directly connected to the IESO-controlled transmi ssion grid – it must be connected to the Ontario
electricity system via a distribution system425.
7.213 The microFIT Contract Price is established by the OPA in the same way as the FIT Contract
Price426 and is listed in the FIT and microFIT Price Schedules 427. The microFIT Contract Price is
guaranteed for 20 years. For each kWh of electricity that a Supplier successf ully delivers into the
Ontario electricity system, it will receive the Contract Price (the "Generation Payment") from the
relevant LDC in accordance with the Retail Settlement Code and the Connection Agreement
428. In
other words, the LDC connected to the microFIT F acility, acting on behalf of the OPA, will make the
Generation Payment in accordan ce with a similar settlement pr ocess used to pay distribution-
connected FIT Suppliers 429. As with the FIT Contract, ultimate liability for Generation Payments
under the microFIT Contract lies with the OPA430.
7.214 Thus, not unlike the FIT Contract, when the microFIT Contract is read as a whole and in the
light of the microFIT Rules, it is appa rent that its fundamental purpose is the delivery of electricity
produced from a Facility that satisfies the "Minimu m Required Domestic Content Level" into the
Ontario electricity system, in return for wh ich the OPA undertakes to pay the Supplier the
remuneration defined under the Contract through the operation of a similar mechanism used to settle
payments owed to distribution-connected FIT Pr ojects. Section 2.1 of the microFIT Contract
characterizes this transaction as the "OPA's procurement of electricity" 431. Similarly, Appendix A to
the microFIT Contract describes it as a "sale" of electricity432.
Conclusion
7.215 Having carefully scrutinized the challenged me asures, and recalling the descriptions of the
challenged measures set out elsewhere in these Reports 433, we conclude that the principle
characteristics of the FIT Programme, and of the FIT and microFIT Contracts, can be described in the
following terms:

proprietary or contractual right, whether or not tradable; (b) rights to any fungible or non-fungible attributes or
entitlements relating to environmental impacts, however arising; (c) any and all rights, title and interest relating
to the nature of an energy source as may be defined and awarded through applicable laws and regulations or
voluntary programs; and (d) all revenues, entitlements, benefits and other proceeds arising from or related to the
foregoing. …". microFIT Contract, Exhibit JPN-164, Appendix A, Definitions.
423 microFIT Rules, Exhibit JPN-157, Sections 1.2(4), 3.1(xi), and 6.1(c). A "Connection Agreement"
is defined as "a 'Micro-Embedded Generation Facility Co nnection Agreement' as prescribed by the Distribution
System Code entered into between an LDC and a Supplier." microFIT Rules, Exhibit JPN-157, Definition
No. 6. It is the standard agreement used by all LDCs and is prescribed by the OEB. microFIT Programme
Overview, Exhibit JPN-38, Section 1.2(d).
424 microFIT Rules, Exhibit JPN-157, Sections 1.2(10) and 4.1(b).
425 microFIT Rules, Exhibit JPN-157, Section 2.1(a)(v).
426 microFIT Rules, Exhibit JPN-157, Section 5.2 and Definitions. The FIT Contract Price is discussed
above at para. 7.202.
427 2011 FIT Price Schedule, Exhibit JPN-30; and 2010 microFIT Price Schedule, Exhibit JPN-31. See
also microFIT Programme Overview, Exhibit JPN-38, Section 1.2(e).
428 microFIT Contract, Exhibit JPN-164, Sections 4.4 and 4.4.2; and microFIT Rules, Exhibit JPN-157,
Section 5.2.
430 microFIT Contract, Exhibit JPN-164, Section 4.4.1.
431 microFIT Contract, Exhibit JPN-164, Section 2.1.
432 microFIT Contract, Exhibit JPN-164, Appendix A, Definitions: "'Settlement Price' means the price
at which electricity sales pursuant to this agreement will be settled." (emphasis added)
433 See above paras. 7.64-7.68 and 7.158-7.165

The FIT Programme
7.216 The FIT Programme has very clearly two funda mental objectives: First, to encourage the
participation of new generation fac ilities using renewable sources of energy into Ontario's electricity
system in order to diversify Ontario's supply-mix and help replace the generation capacity that has
been (and will be) lost as a result of the closure of Ontario's coal-fired facilities by 2014, and thereby
also reduce greenhouse gas emissions; and secondly, to stimulate local investment in the production
of renewable energy generation equipment needed to design and construct qualifying generation
facilities using solar PV and windpower technologies. These obj ectives are pursued through the
execution of the FIT and microFIT Contracts, which involve an exchange of performance obligations
on the part of the OPA and qualifying Suppliers. Th ere is no inherent grant element to the FIT and
microFIT transactions.
The FIT and microFIT Contracts
7.217 In essence, the FIT and microFIT Contracts e nvisage an exchange of the following core
performance obligations between Suppliers and the OPA:
7.218 A Supplier must:
(i) design, construct, own (or lease) and opera te a qualifying facility in accordance with
all relevant IESO Market Rules, laws and regulations;
(ii) comply with the "Minimum Required Domestic Content Level" when designing and
constructing a solar PV or a microFIT windpower facility;
(iii) deliver the electricity that is produced into the Ontario electricity system in
accordance with all relevant IESO Market Rules, laws and regulations;
(iv) participate in a defined electricity payment processes to settle Contract Payments that
is not unlike that used generally in Ontario's electricity system; and
(v) assign all Environmental Attributes associated with the Contract Facility to the OPA,
pay the OPA 50% of all payments received by the Supplier under the "ecoENERGY
for Renewable Power Program"
434, and effectively transfer to the OPA 80% of total
net revenues from the sale of Future Contract Related Products435.
7.219 In return, the OPA agrees to make the Contract Payments, which are defined in such a way
that ensures each Supplier will be remunerated vi a defined settlement processes at the guaranteed FIT
Contract Price for each kWh of Delivered Electricity for 20 years.
(iii) Legal characterization of the measures
7.220 We recall that the complainants have argued that the challenged measures may be properly
characterized as one or multiple types of the "financi al contribution[s]" defined in Article 1.1(a)(1) of
the SCM Agreement and/or a form of "income or price support" within the meaning of

434 Although explicitly excluded from the definition of Environmental Attributes found in the microFIT
Rules, ecoENERGY payments are neither excluded from, nor included in, the definition of Environmental
Attributes that is contained in the microFIT Contr act. Thus, it is unclear whether any ecoENERGY payments
made to microFIT Suppliers would not have to be transferred to the OPA by virtue of being Environmental
Attributes. See above para. 7.212 and fn. 422.
435 This obligation is only explicitly found in the FIT Contract, Exhibit JPN-127.

Article 1.1(a)(2) of the SCM Agreement. On th e other hand, Canada has argued that the only
appropriate characterization of the measures at issue is as "financial contribution[s]" in the form of
"government purchases [of] goods" under the terms of Article 1.1(a)(1(iii) of the SCM Agreement.
Because there is no dispute between the parties about whether each of the challenged measures
amount to a "financial contribution", we begin by assessing the merits of the parties' arguments
concerning the specific types of "financial contribution" they each consider match the salient
characteristics of the challenged measures.
The challenged measures as financial contributions
7.221 Article 1.1(a)(1) of the SCM Agreement defin es a "financial contribution" in the following
terms:
(a)(1) there is a financial contribution by a government or any public body
within the territory of a Member (r eferred to in this Agreement as
"government"), i.e. where:
(i) a government practice involves a dir ect transfer of funds (e.g. grants,
loans, and equity infusion), potential direct transfers of funds or liabilities
(e.g. loan guarantees);
(ii) government revenue th at is otherwise due is foregone or not collected
(e.g. fiscal incentives such as tax credits);
(iii) a government provides goods or services other than general
infrastructure, or purchases goods;
(iv) a government makes payments to a funding mechanism, or entrusts
or directs a private body to carry out one or more of the type of functions
illustrated in (i) to (iii) above which would normally be vested in the
government and the practice, in no real sense, differs from practices normally
followed by governments[.]
7.222 Having carefully considered the parties' arguments, we agree with Canada that the appropriate
legal characterization of the FIT Programme and th e FIT and microFIT Contracts is as "financial
contribution[s]" in the form of "government purchases [of] goods" within the meaning of
Article 1.1(a)(1)(iii) of the SCM Agreement. We come to this conclusion on the basis of the following
considerations.
The OPA pays for "delivered electricity"
7.223 First, in evaluating how the challenged measures should be legally characterized it is, in our
view, important to recall that one of the fundame ntal objectives of the FIT Programme is to secure
investment in new generation facilities for the purposes of diversifying Ontario's supply-mix and
helping to fill the supply gap that is expected from the closure of Ontario's coal-fired facilities
by 2014. It is by offering a Contract Price and making Contract Payments for Delivered Electricity
that the Government of Ontario endeavours to achi eve this objective. In other words, although the
construction of a certain type of renewable ener gy generation facility is one of the objectives (and
indeed, one of the conditions) of the challenged measures, the provisions of the FIT and microFIT
Contracts expressly confirm that the funds transfe rred to qualifying Suppliers are intended to pay for
the electricity that is delivered into Ontario's electricity grid. That the Contract Price is set at a level
that is intended to provide a reasonable return on investment for the overall project does not alter the

fact that under the express terms of the FIT and micr oFIT Contracts, Contract Payments will be made
to solar PV and windpower generators only if electricity is delivered
436. Thus, there is no grant
element inherent in the design and operation of the FIT Programme. The OPA does not pay for
renewable energy equipment or facilities. It does not make any upfront lump-sum advances to the FIT
generators: the OPA's payment liability will arise only as and when electricity is produced and
delivered into the system pursuant to the terms of the FIT and microFIT Contracts.
7.224 Likewise, while a FIT and microFIT Contract will facilitate a Supplier's search for
appropriate project financing, it would be wrong to characterize the Contract Payments themselves as
finance payments for the construction of the Contr act Facility. Indeed, whereas an entity that provides
project financing accepts the risk of losing money if it obtains insufficient security, the OPA accepts
no comparable risk because it is only by way of th e provision of electricity – the goods in this case –
that any money is paid to a FIT Supplier.
The Government of Ontario takes possession over electricity and therefore "purchases" electricity
7.225 Secondly, we are not convinced by the European Union's argument that the notion of
government "purchases [of] goods" that is referred to in Article 1.1(a)(1)(iii) of the SCM Agreement,
must be interpreted to mean that the "term 'purch ase' implies that the government is the entity being
supplied with something for its use"
437. In our view, the correct interpretation of these terms is closer
to that advanced by Japan, which is derived from th e following two ordinary meanings of the verb to
"purchase" obtained from The Oxford English Dicti onary (OED Online): (i) "to obtain; to gain
possession of"; and (ii) "to acquire in exchange for payment in money or an equivalent; to buy"438.
7.226 On the basis of the above two definitions, the act of purchasing a good might be described in
terms of gaining possession of, acquiring, buying or obtaining a good. Among the definitions of the
verbs to "acquire", to "buy" and to "obtain", found in the same dictionary used by Japan and Canada
are, respectively: (i) to "gain possession of through skill or effort; to obtain, develop, or secure in a
careful, concerted, often gradual manner"439; (ii) to "get possession of by giving an equivalent, usually
in money; to obtain by paying a price; to purchase" 440; and (iii) to "come into the possession of; to
procure; to get, acquire, or secure"441.
7.227 The fact that the notion of "possession" is central to all three of the above definitions suggests
that irrespective of the particular term used to explain what is meant by a "purchase", it should
necessarily be understood as an act that, in the context of Article 1.1(a)(1)(iii) of the SCM Agreement,
will result in the government "possessing" the good that is purchased. Furthermore, it follows from
most of the above formulations, that the notion of a "purchase" for the purpose of Article 1.1(a)(1)(iii)
should involve some kind of payment (usually m onetary) in exchange for a good. This latter
proposition finds support in US – Large Civil Aircraft (Second Complaint) , where the Appellate Body

436 The relevance to our legal characterization of the ch allenged measures of the fact that Exhibit B of
the FIT Contract, Exhibit JPN-127, provides that a FIT generator will be given an "Additional Contract
Payment" when it is directed by the IESO not to deliver electricity is discussed below at paras. 7.240 and 7.241.
437 European Union's second written submission, para. 13. (emphasis added)
438 Japan's second written submission, para. 38. Sim ilar ordinary meanings can be found in the
dictionary definitions of the terms used to describe a government "purchase" of goods in the French and Spanish
language versions of Article 1.1(a)(1)( iii) of the SCM Agreement (respectively, " achètent" and " compre"). In
particular, "acheter" is defined as " obtenir contre paiement la propriété et l'usage " (Le Trésor de la Langue
Française Informatisé, online version at http://atilf.atilf.fr/); while " comprar" is defined as " obtener algo con
dinero" (Real Academia Española, online version at http://www.rae.es/rae.html).
439 Shorter Oxford English Dictionary, online version at http://www.oed.com/view/Entry/1731.
440 Shorter Oxford English Dictionary, online version at http://www.oed.com/view/Entry/25484.
441 Shorter Oxford English Dictionary, online version at http://www.oed.com/view/Entry/130002.

observed that "[t]he second sub-clause [of Article 1. 1(a)(1)(iii) of the SCM Ag reement] uses the term
'purchase', which is usually unde rstood to mean that the person or entity providing the goods will
receive some consideration in return"
442. Thus, we find that the ordinary meaning of the term
"purchase" suggests that for the purpose of Article 1.1(a)(1)(iii) of the SCM Agreement, government
"purchases [of] goods" will arise when a government obtains possession over a good through some
kind of payment (monetary or otherwise).
7.228 Having said that, like Canada 443, we observe that nothing in the ordinary meanings we have
reviewed suggests that a "purchase" must involve obtaining physical possession over something.
Although a purchase of goods may exist when an en tity takes physical possession over of a good in
exchange for a payment of some kind, it may also arise in other situations when a purchaser does not
physically possess the purchased good. Canada has presented the following two examples of such
purchases: (i) a book that is bought on the internet by an entity that directs the seller to deliver it to
somebody else as a gift; and (ii) a product on a ship at sea that is bought and sold by means of its bill
of lading
444. In both examples, a purchase of goods is e ffected by means of an exchange of
performance obligations involving the transfer of an entitlement to the purchased product from the
seller to the purchaser. No actual physical possession of the product purchased is necessary.
7.229 That a purchase of goods may take place through the transfer of an entitlement to a product is
particularly important when considering what it means to purchase electricity, which, as we have
previously explained445, is an intangible good that, in general, cannot be stored and must be consumed
almost at the same time it is produced. Thus, given the specific characteristics of electricity, it is
perhaps best to conceive of a purchase of el ectricity as involving the transfer of an entitlement to
electricity, rather than the taking of physical posses sion over electricity. This appears to accord with
Japan's view that "[d]espite the nature of electr icity, which is drawn 'a lmost instantaneous[ly]" by
consumers when consumers turn on their electronic devices, intermediaries in the transmission and
distribution process (such as wholesalers and reta ilers) can and do take title to, and accordingly
possess, the electricity on its way to the end consumer"446.
7.230 Turning to the context of the term "purch ases goods", the European Union argues that the
language of Article 1.1(a)(1)(iii) opposes the word "pur chase" to the term "provision", and that this is
instructive for the purpose of interpreting the form er. Specifically, the Europ ean Union suggests that
this juxtaposition means that just as "the term 'provision' implies that the government is the entity
supplying something for the use of the recipient, the term 'purchase' implies that the government is the
entity being supplied with something for its use"
447. We are not persuaded by this argument. In our
view, there is little interpretative guidance to be dr awn from the fact that the words "provides goods"
and "purchases goods" appear in the same sub-paragr aph. Certainly, we cannot see how the different
language used in the two clauses of Article 1. 1(a)(1)(iii) assists us in understanding whether
"purchases [of] goods" must necessarily involve using the goods in question.

442 Appellate Body Report, US – Large Civil Aircraft (Second Complaint) , para. 619. We note that the
notion of "consideration" is derived from common law, where it plays a critical role in determining the existence
of a contract. However, the word "consideration" does not appear in the above dictionary definitions. Moreover,
the notion of "consideration" is not a necessary element of contracts executed under civil law (and possibly
other legal) systems. Thus, to the extent that the concept of "consideration" may inform the meaning of the term
"purchase [of] goods" under Article 1.1(a)(1)(iii) of the SCM Agreement, it needs to be recalled that it is a legal
construct that cannot be found in the legal systems of many WTO Members.
443 Canada's second written submission, para. 93; and opening statement at the second meeting of the
Panel, paras. 22-23.
444 Canada's opening statement at the first meeting of the Panel, paras. 41-42.
445 See above para. 7.11.
446 Japan's second written submission, para. 39.
447 European Union's opening statement at the second meeting of the Panel, para. 13.

7.231 It is important to recall that Article 1.1(a)(1)(iii) refers to " government … purchases goods".
The first paragraph of Article 1.1 clarifies that th e term "government" is to be understood to mean
"government" or "public body". Thus, in the light of the foregoing analysis, it follows that
"government purchases [of] goods" will arise under the terms of Article 1.1(a)(1)(iii) of the SCM
Agreement when a "government" or "public body" obtains possession (i ncluding in the form of an
entitlement) over a good by making a payment of some kind (monetary or otherwise). In our view,
and for the reasons we explain in the following para graphs, this is exactly what happens through the
FIT Programme and its related FIT and microFIT Contracts.
7.232 We recall that the provisions of the FIT and microFIT Contracts expressly confirm that the
funds transferred to qualifying Suppliers are intended to pay for the electricity that is delivered into
Ontario's electricity grid
448. Once a Supplier delivers electricity in to the grid, it loses all rights and
entitlements to that electricity, but it will be paid for the kWhs that are in jected into the system.
According to Japan and the European Union, th e OPA does not take any form of possession over the
electricity that is supplied. Canada has not contradi cted the complainants' assertions as they relate to
the OPA 449. Nevertheless, Canada has argued that the "Government" of Ontario does take physical
possession over the electricity delivered under th e FIT Programme through the transmission and
distribution operations of Hydro One and 77 of the 80 LDCs that currently operate in Ontario450.
7.233 In US – Anti-Dumping and Countervailing Duties (China) , the Appellate Body explained that
the term "government" is defined as the "continuous exercise of authority over subjects; authoritative
direction or regulation and control", recalling that in Canada – Dairy, it had found that "the essence of
government is that it enjoys the effective power to regulate, control, or supervise individuals, or
otherwise restrain their conduct through the exercise of lawful authority"451. The Appellate Body went
on to find that "public body" must be understood to mean "an entity that possesses, exercises or is
vested with governmental authority" 452. The Appellate Body has explained the nature of
"governmental authority" in the following terms:
There are many different ways in which government in the narrow sense could
provide entities with authority. Accordi ngly, different types of evidence may be
relevant to showing that such authority has been bestowed on a particular entity.
Evidence that an entity is, in fact, exer cising governmental functions may serve as
evidence that it possesses or h as been vested with governmental authority,
particularly where such evidence points to a sustained and systematic practice. It
follows, in our view, that evidence that a government exercises meaningful control
over an entity and its conduct may serve, in certain circumstances, as evidence that
the relevant entity possesses governmental aut hority and exercises such authority in
the performance of governmental functions. We stress, however, that, apart from an
express delegation of authority in a legal instrument, the existence of mere formal
links between an entity and government in th e narrow sense is unlikely to suffice to
establish the necessary possession of government al authority. Thus, for example, the

448 See above, paras. 7.203-7.213.
449 Although Canada maintains that the fact that the IESO does not take title to electricity "says nothing
of the obtaining or acquisition by the OPA" (Canada' s second written submission, para. 47), Canada has not
specifically refuted Japan's allegation that "no provision of a FIT Contract … gives the OPA the right to take
title to the renewable electricity delivered". Japan's second written submission, para. 39.
450 Canada's response to Panel question No. 21 (first set); and opening statement at the second meeting
of the Panel, paras. 30-32.
451 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 290, referring
to the Shorter Oxford English Dictionary, 6 th Edition, A. Stevenson (ed.) (Oxf ord University Press, 2007),
Vol. 1, p. 1139; and Appellate Body Report, Canada – Dairy, para. 97.
452 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 317.

mere fact that a government is the majo rity shareholder of an entity does not
demonstrate that the government exercises meaningful control over the conduct of
that entity, much less that the government has bestowed it with governmental
authority. In some instances, however, wh ere the evidence shows that the formal
indicia of government control are manifold , and there is also evidence that such
control has been exercised in a meaningful way, then such evidence may permit an
inference that the entity concerned is exercising governmental authority
453.
7.234 Hydro One is an agent of the Government of Ontario 454. As we have previously noted, the
Government of Ontario describes a governmental "a gent" as "a provincial government organization:
[i] which is established by the govern ment, but is not part of a minist ry; [ii] which is accountable to
the government; [iii] to which the government appoints the majority of the appointees; and [iv] to
which the government has assigned or delegated authority and respons ibility, or which otherwise has
statutory authority and responsibility to perform a public function or service" 455. It is particularly the
last point included in the Government of Ontario's definition of a governmental agent that makes
Hydro One a "public body" within the meaning of Article 1.1(a)(1) of the SCM Agreement.
7.235 That the Government of Ontario has "meaningful control" over Hydro One's activities in a
way that confirms it is a "public body" within the meaning of Article 1.1(a)(1) of the SCM Agreement
is evident from a number of more formal indicators. Starting with the statutory basis of Hydro One's
incorporation, the Electricity Act of 1998 , we note that the Government of Ontario has not only
imposed a duty on Hydro One to "operate generation facilities and distribution systems" and
"distribute electricity" in "such communities" as the Government may prescribe, but it has also
granted itself broad powers to define the "cond itions and restrictions" pursuant to which such
operations must be conducted. Thus, Section 48.1(1) of the Electricity Act of 1998 provides that:
Hydro One Inc. shall, through one or more subsidiaries, operate generation facilities
and distribution systems in, and shall dist ribute electricity within, such communities
as may be prescribed by regulation, whether or not the community is connected to the
IESO-controlled grid, and shall do so in accordance with such conditions and
restrictions as may be prescribed by regulation456.
Likewise, Section 48.2(1) of the Electricity Act of 1998 reveals that the Government of Ontario has
the power to prescribe mandatory provisions in Hy dro One's articles of incorporation "governing the
creation and issuance of one or more classes of special shares to be issued to the Minister, to hold on
behalf of Her Majesty in right of Ontario", governing "constraints on the issue, transfer and
ownership, including joint ownership, of voting securities of the corporation", and "with respect to the
enforcement of the constraints" 457. The scope of this power is clarified in Section 53(1)(c); while
Section 53(2) identifies "[w]ithout limiting the ge nerality of" Section 53(1)(c), the following
examples of the areas where the Government may choose to intervene:

(a) the mandatory disclosure of informati on in documents issued or published by
the applicable corporation;

453 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 318.
454 Government of Ontario: All Agencies List, Exhibit JPN-49.
455 Government of Ontario: Agencies, Exhibit JPN-51, p. 1.
456 The government's power to prescribe the communities to be targeted by Hydro One's generation and
distribution activities, as well as the conditions and restrictions of such operations, is repeated in
Section 53(1)(a) and (b) of the Electricity Act of 1998, Exhibit JPN-5.
457 This power is repeated and clar ified in Section 53(1)(c) of the Electricity Act of 1998, Exhibit JPN-
5.

(b) the duties and powers of the directors to refuse to issue or register transfers of
shares in accordance with the articles of the corporation;
(c) the limitations on voting rights of any shares held contrary to the articles of
the corporation;
(d) the powers of the directors to require disclosure of beneficial ownership of
shares of the corporation and the rights of the corporation and its directors,
employees or agents to rely on the disclosure and the effects of the reliance;
(e) the manner of determining how much of the equity of a corporation a person
or class of persons owns.
Finally as regards the Electricity Act of 1998 , we note that Sections 50.4(1) and 50.4(4) require that
Hydro One report to the Minister on the following basis:

Hydro One Inc. shall, within 90 days afte r the end of every fiscal year, submit to the
Minister an annual report on its affairs during that fiscal year, signed by the chair of
the board of directors.
Hydro One Inc. shall give such other repor ts and information to the Minister of
Finance or to the Minister as each of them may require from time to time.
7.236 The 2008 Memorandum of Agreement ("MOU") be tween the Government of Ontario and
Hydro One reveals how some of the above-men tioned government's powers and Hydro One duties
have been implemented. Although directed to operate as a "commercial enterprise with an
independent Board of Directors"
458, Hydro One must comply with the Government of Ontario's
direction to undertake "special initiatives" in rela tion to "governance" issues. Hydro One must also
"prioritize investments in transmission and dist ribution capacity to support projects necessary to
maintain ongoing grid security and reliability". In this regard, Hydro One is directed to "prepare a
three to five year investment plan for new projects", which after being approved by its Board of
Directors, "will be submitted to the Minister of Energy and Minister of Finance for concurrence".
Moreover, Hydro One "will obtain the approval of the Mi nister of Energy and Minister of Finance in
advance with respect to: (i) any proposal to issue or transfer shares in the Corporation or any of its
subsidiaries; (ii) any proposed acquisition or divestment of assets"459.
7.237 In terms of communications a nd reporting, Hydro One's Board of Directors must meet the
Minister of Energy "as needed" "to enhance mutu al understanding of interrela ted strategic matters".
Hydro One's Chair, President and Chief Executive Officer will meet with the Minister of Energy "on a
regular basis". Moreover, Hydro One's senior mana gement is also required to meet with senior
officials of the Ministry of Energy and the Minist ry of Finance "on a regular basis and as needed to
discuss ongoing issues and clarify expectations or to identify and address emergent issues"460.
7.238 Finally, as regards Hydro One's "performance expectations", "[k]ey measures are to be agreed
upon with the Minister of Energy and the Minister of Finance", and once approved by Hydro One's

458 Memorandum of Agreement between the Government of Ontario and Hydro One, Exhibit CDA-
107, p. 1.
459 Memorandum of Agreement between the Government of Ontario and Hydro One, Exhibit CDA-
107, p. 2.
460 Memorandum of Agreement between the Government of Ontario and Hydro One, Exhibit CDA-
107, p. 2.

Board of Directors, annual performance targets "wil l be submitted to the Minister of Energy and the
Minister of Finance for concurrence"
461.
7.239 Thus, apart from the Government of Ontario's explicit description of Hydro One as its
"agent", the above indicia of the Government of Ontario's "meaningful control" over Hydro One's
corporate and business operations lead to the conclu sion that Hydro One is a "public body" for the
purpose of Article 1.1(a)(1) of the SCM Agreement. In this light, the fact that Hydro One owns and
operates 97% of the transmission lines combined with the fact that it distributes electricity to
1.3 million customers, strongly suggests that the G overnment of Ontario purchases the electricity that
is delivered into the grid under the FIT Programme
462. In this regard, it is also important to recall that
while the IESO (another "agent" of the Government of Ontario) has stated that it does not take any
"title" to the electricity in the Ontario power grid 463, it nevertheless controls how electricity flows
through that grid. Thus, the Government of Ontario not only contracts with FIT Programme
generators through the OPA to supply electricity into the grid, but it also directs the movement of that
electricity to and throughout that grid by means of IESO instructions, and then finally, through the
operations of Hydro One, transmits and distributes the delivered electricity to end-user customers. In
our view, the combined actions of all three "public bodies" 464 (but especially Hydro One and the
OPA) demonstrate that the Government of Onta rio purchases electricity within the meaning of
Article 1.1(a)(1)(iii) of the SCM Agreement.
7.240 Although both Japan and the European Union have identified the fact that FIT and microFIT
generators will be paid for electricity they are directed by the IESO not to supply as evidence to
support the conclusion that the OPA does not purchase electricity 465, Canada, as already noted, has
explained that: (i) FIT generators have never been directed by the IESO to refrain from delivering
electricity into the system; (ii) the IESO cannot make such requests of smaller FIT and microFIT
generators because they are not connected to the IESO-controlled transmission grid; and (iii) supply
contracts with generators that are "non-dispa tchable" (such as the FIT solar PV and windpower
generators) will typically include a clause allowing the IESO to direct a facility not to supply as a
mechanism to prevent the oversupply of electricity into the grid466.
7.241 To the extent that the FIT Contracts contemplate the possibility of FIT generators being paid
for electricity that is not produced and delivered in to the transmission grid by virtue of the IESO's

461 Memorandum of Agreement between the Government of Ontario and Hydro One, Exhibit CDA-
107, p. 3.
462 In this regard, we note that the European Union argues that the purchaser of the electricity under the
FIT Programme is not the OPA but the distributors. European Union's first written submission, para. 56.
Similarly, Japan argues that the purchase rs of electricity in Ontario are the "intermediaries in the transmission
and distribution process such as wholesalers and retailers". Moreover, Japan has submitted evidence suggesting
that an electricity "marketer" takes title to electricity (and therefore in our view possession), by virtue of
purchasing electricity for resale from power generato rs and wholesalers. Japan's second written submission,
fn. 48 quoting from Ohio Electric Utility Institute, Glossa ry, ("Glossary of the Ohio Electric Utility Institute"),
Exhibit JPN-224; Delaware Code, Title 26, Section 1001, ("Delaware Code"), Exhibit JPN-225; and
Pennsylvania Code, Title 52, Section 54.2, ("Pennsylvania Code"), Exhibit JPN-226.
463 IESO: Settlement Statements and Invoices, Exhibit JPN-62, p. 1.
464 The OPA and the IESO are "agents" of the Government of Ontario. See Government of Ontario: All
Agencies List, Exhibit JPN-49; Agency Details, OPA, Exhibit JPN-50; and Government of Ontario: Agencies,
Exhibit JPN-51. There is no dispute between the parties that the OPA and the IESO are "public bodies" for the
purpose of the SCM Agreement.
465 Japan's response to Panel question No. 21 (f irst set); second written submission, para. 42;
European Union's opening statement at the first meeting of the Panel, para. 18; and second written submission,
para. 44.
466 Canada's response to Panel question No. 21 (first set); and opening statement at the second meeting
of the Panel, paras. 30-32.

instruction, it is clear to us that the OPA is payi ng for the existence of an exceptional mechanism that
is needed to manage the risks of system overload. Given the inherent characteristics of electricity and
the complexities of operating a safe and reliable electricity system
467, it seems to us that such a
contractual clause would be a sine qua non to the purchase of electricity from non-dispatchable
generators. Thus, in our view, the fact that the FI T Contract contemplates the payment of generators
for electricity supply that is foregone under IESO direction, does not take away from the
characterization of the challenged measures as "government purchases [of] goods".
 Legislation, regulations and contracts
7.242 Finally, the third consideration that has led us to the conclusion that the challenged measures
constitute government purchases of goods is the le gislative and regulatory framework of the FIT
Programme as well as the language found in certain clauses of the FIT and microFIT Contracts
themselves468. In our view, these documents leave no doubt that the challenged measures are
perceived by the Government of Ontario, and others in Ontario, as governmental activity that involves
the procurement or purchase of electricity. This is the consistent and repeated message articulated in
the legal instruments we have reviewed, and it is by no means contrived. We recognize, however, that
as the complainants have emphasized, the label gi ven to an instrument under municipal law is not
dispositive of the analysis that we must undertak e for the purpose of WTO law. Nevertheless, it is
equally the case that such evidence cannot simply be ignored and it must form part of our analysis.
Thus, while this evidence "cannot be the end of our analysis" 469, the fact that the Electricity Act of
1998, the Ministerial Direction, the FIT and microFIT Contracts and other documents, all in one way
or another characterize the challenged measures as a procurement or purchase of electricity, is a
relevant factor that we take into account in our analysis.
 Conclusions
7.243 Thus, for all of the foregoing reasons, we concl ude that the appropriate legal characterization
to be given to the FIT Programme, and the FIT a nd microFIT Contracts, is as "government purchases
[of] goods" under Article 1.1(a)(1)(iii) of the SC M Agreement. Although we recognize that the
challenged measures exhibit some of the basic feat ures of certain forms of "direct transfer[s] of
funds", in that they involve an exchange of ri ghts and obligations which includes the payment of
money, we do not agree with the complainants that this means they can also be legally characterized
as such for the purposes of the SCM Agreement.
7.244 In US – Large Civil Aircraft (Second Complaint) , the Appellate Body observed that a
purchase of goods "is usually understood to mean that the person or entity providing the goods will
receive some consideration in return"470. The ordinary meaning of the word "purchase" suggests that a
government purchase of goods will arise when it makes some kind of payment in the form of "money
or an equivalent" in exchange for taking po ssession (including by obtaining an entitlement) over a
good471. Thus, we see two major differences between a "direct transfer of funds", in the form of a
transaction involving an exchange of rights and obligations, and government "purchases [of] goods".
First, a government providing a "direct transfer of funds" must transfer financial resources of some
kind; whereas a government may use money or an equivalent to purchase goods. Second, whereas
Article 1.1(a)(1)(iii) identifies only one object of a government's purchases, i.e. goods;

467 See above paras. 7.11-7.18.
468 See above paras. 7.195-7.214.
469 Appellate Body Report, US – Large Civil Aircraft (Second Complaint), para. 593.
470 Appellate Body Report, US – Large Civil Aircraft (Second Complaint), para. 619.
471 See above paras. 7.225 and 7.227.

Article 1.1(a)(1)(i) does not specify the particular obj ect of a government's direct transfer of funds
(when this involves an exchange of rights and obligations).
7.245 In our view, the fact that Article 1.1(a)(1)(iii) specifically identifies "goods" as the objects
that a government will purchase is significant and reveal s an intention on the part of the drafters to
focus the relevant sub-clause of this provision on only this form of financial contribution. It is difficult
to imagine that the drafters expressly referred to "purchases [of] goods" in Article 1.1(a)(1)(iii) of the
SCM Agreement intending that such transactio ns should also be pr operly covered under
Article 1.1(a)(1)(i) as "direct transfers of funds". In this regard, we observe that the only two
examples of "direct transfer[s] of funds" invo lving reciprocal rights and obligations that
Article 1.1(a)(1)(i) identifies are "loans" and "equity infusion[s]". Government "purchases of goods"
could have easily been added to these examples had th e drafters considered that they should also be
viewed as falling within the scope of Article 1.1( a)(1)(i) of the SCM Agreement, particularly given
that they are explicitly mentioned in Article 1.1(a)(1)(iii) of the SCM Agreement.
7.246 Furthermore, finding that the challenged meas ures may be legally characterized as "direct
transfer[s] of funds" would, in our view, be contrary to the principle of effective treaty interpretation,
which requires an interpreter to refrain from adoptin g "a reading that would result in reducing whole
clauses or paragraphs of a treaty to redundancy or inutility"
472. We see no way of reading
Articles 1.1(a)(1)(i) and (iii) in a way that enabl es us to conclude that government "purchases [of]
goods" could also be legally characterized as "dir ect transfer[s] of funds" without infringing this
principle473. While we recognize that one way the two provi sions could be read together would be to
limit the types of purchases covered under Article 1.1(a)(1)(iii) to only those effected through a
payment that is not monetary in nature, we can find no support for such a restrictive interpretation of
the ordinary meaning of the word "purchase" in the language of Article 1.1(a)(1)(iii) or its immediate
context; and, indeed, the complainants have not ventured any.
7.247 Finally, the complainants claim that suppor t for their views comes from the following
observation made by the Appellate Body in a footnote in US – Large Civil Aircraft (Second
Complaint): "The structure of [Article 1.1(a)(1)] does not expressly preclude that a transaction could
be covered by more than one s ubparagraph. There is, for exampl e, no 'or' included between the
subparagraphs"474. It is apparent that the content of this footnote does not amount to a finding that
transactions properly characterized as "purchases [of] goods" can also constitute "direct transfer[s] of
funds". On this specific issue, the Appellate Body did not come to any definitive conclusion. Thus,
while we can see that it may be possible to charac terize different aspects of the same measure as
different types of "financial contributions" (for example, a governmental programme involving loans
and purchases of goods), we do not believe that customary rules of interpretation of public
international law allow us to accept the interpretation advanced by the complainants.
7.248 Having found that the challenged measures shoul d be legally characterized as "government
purchases of goods", and thereby rejecting that they am ount to "direct transfer[s] of funds", we also

472 Appellate Body Report, US – Gasoline, p. 23.
473 The same conclusion led the panel in US – Large Civil Aircraft (Second Complaint) to state that it
was "not free to accept the argument that transactions involving purchases of services (along with transactions
involving purchases of goods) are covered by other sub-paragraphs and elements of Article 1.1(a)(1)", finding
therefore that "transactions properly characterized as pu rchases of services are excluded from the scope of
Article 1.1(a)(1)(i) of the SCM Agreement". Panel Report, US – Large Civil Aircraft (Second Complaint) ,
paras. 7.956 and 7.970. While the Appellate Body Report declared the panel's finding "moot and of no legal
effect" (Appellate Body Report, US – Large Civil Aircraft (Second Complaint) , para. 620), we consider the
panel's reasoning, as it relates to the concept of "purchases of goods", nevertheless a useful exposition of the
interpretative problem that we believe is created by the complainants' arguments in these proceedings.
474 Appellate Body Report, US – Large Civil Aircraft (Second Complaint), fn. 1287.

find that they cannot be "potential direct transfers of funds". Equally, to the extent that Japan and the
European Union may have argued that the challe nged measures could be legally characterized as a
form of "financial contribution" involving government entrustment or direction within the meaning of
Article 1.1(a)(1)(iv) of the SCM Agreement, we also reject this argument.
The Challenged measures as a form of income or price support
7.249 Both complainants in these proceedings have advanced essentially parallel arguments focused
around the wholesale market for electricity to substantiate their assertions concerning the existence of
"benefit", irrespective of whet her the challenged measures are legally characterized under
Articles 1.1(a) or 1.1(a)(2) of the SCM Agreement
475. In the section that follows, the Panel majority
rejects the entirety of the complainants' "benefit" argum ents as they relate to Article 1.1(a)(1)(iii). It
follows that the complainants' subsidy claims must also fail regardless of whether the Panel majority
agrees with their contentions that the FIT Progra mme, and the FIT and microFIT Contracts, constitute
a form of "income or price support" within the m eaning of Article 1.1(a)(2) of the SCM Agreement.
In other words, the arguments the complainants ha ve advanced to support their allegations about the
extent to which the challenged measures confer a "benefit", when they are characterized as "income or
price support" within the meaning of Article 1.1( a)(2) of the SCM Agreemen t, are essentially the
same as those examined and rejected by the Pane l majority in the following section of these Reports.
In this light, we do not believe it is necessary, for the purpose of satisfactorily resolving the
complainants' subsidy claims, to also decide wh ether the FIT Programme, and the FIT and microFIT
Contracts, amount to "income or price support" u nder the terms of Article 1.1(a)(2) of the SCM
Agreement. Therefore, on the grounds of judicial economy, we make no findings in respect of the
complainants' allegations that the challenged measures may be legally characterized as "income or
price support" under Article 1.1(a)(2) of the SCM Agreement.
3. Whether the challenged measures confer a "benefit" within the meaning of
Article 1.1(b) of the SCM Agreement
(a) Arguments of the parties
(i) Japan
7.250 Recalling that the Appellate Body and WTO panels have consistently found that a "financial
contribution" confers a "benefit" when it is provide d on terms that are better than those available to
the recipient on the relevant market, Japan submits th at the measures at issue confer a benefit within
the meaning of Article 1.1(b) of the SCM Agreement for two main reasons
476.
7.251 First, according to Japan, the challenged meas ures confer a benefit because they guarantee
that FIT and microFIT generators w ill receive a price for the electricity 477 they produce that exceeds
the price of electricity on the wholesale and/or retail markets in Ontario, or alternatively, in any one of
four jurisdictions outside of Ontario ("out-of-Province jurisdictions"). To substantiate its view that the
FIT and microFIT generators are remunerated in excess of the price of electricity on the wholesale
electricity market, Japan advances seven wholesale "commodity" electricity price benchmarks. The

475 See e.g. Japan's first written submission, para s. 219-247; and European Union's first written
submission, paras. 63-89.
476 Japan's first written submission, paras. 216-247; and second written submission, paras. 3-16.
477 The focus of Japan's argument is on the "commod ity charge" portion of wholesale electricity prices,
which it describes as the "portion of the prices paid by consumers that serves as th e payment for the electricity
itself, as opposed to payment for servi ces associated with the de livery of that electricity to consumers", or the
"price that relates to payment for the electricity it self (as opposed to payment for the services of
transmission/distribution and market operation)". Japan's first written submission, paras. 11 and 77.

first of the proposed benchmarks is what Japan co nsiders to be the actual weighted average of the
wholesale price of electricity in Ontario dur ing 2010, namely, the weighted average HOEP
478. The
second and third proposed benchmarks Japan adva nces are the weighted average "wholesale rate"
during 2010 for generators other than FIT and RESOP generators 479, and the "commodity portion" of
the price paid by retail consumers under the Regulated Price Plan ("RPP") in 2010 480. The remaining
four wholesale electricity price benchmarks that Japan presents allegedly represent the 2010 average
wholesale prices in the deregulated/competitive markets of Alberta, New York, New England and the
Mid-Atlantic United States
481. Japan submits that the Panel may turn to these out-of-Province
benchmarks if it determines that the Ontario-based electricity price benchmarks are distorted in any
way482. Finally, Japan argues that the RPP prices it has advanced may also serve as a benchmark
against which to measure whether the challenged measu res confer a benefit because, in Japan's view,
they establish a ceiling for the amount that Ontario consumers will be willing to pay for electricity.
According to Japan, no generator of electricity in On tario should expect to receive a rate in excess of
the price paid by retail consumers in the commodity portion of their bill 483. Thus, to the extent that
FIT and microFIT generators receive prices for delivered electricity that are in excess of the RPP
prices, Japan submits that the challenged measures must confer a benefit.
7.252 The second argument that Japan makes to substan tiate its allegations concerning benefit is
based on the history of the Ontario electricity ma rket, and the objective design and structure of the
FIT Programme. In particular, Japan submits that the history of the Ontario electricity market
demonstrates that Ontario established its present market structure, including the OPA and ultimately
the FIT Programme, because the lib eralized market that operated in 2002 did not attract sufficient
electricity supply, in particular from renewabl e sources, to cover the needs of the Province 484.
According to Japan, the Government of Ontario d ecided to internalize the positive externalities of
renewable energy by guaranteeing payments that cover the production costs and reasonable profits of
the FIT and microFIT generators over a period of 20 years. Japan submits that such payments would
not have been otherwise available to renewable electricity generators because the wholesale electricity
market that would exist in the absence of the FI T Programme would have exposed them not only to
lower pricing but also other less advantageous c ontractual terms and conditions. Thus, Japan argues
that the history of the Ontario electricity and th e objective design and structure of the FIT Programme
shows that, in the absence of the FIT Programme, th e FIT and microFIT generators would be unable
to operate in today's wholesale electricity market485.

478 Japan's first written submission, paras. 219-220.
479 Japan's first written submission, para. 221. This rate is calculated by finding the weighted average of
the prices received for each kWh of electricity delivered into Ontario's electricity system in 2010 by "assets
whose rates are not regulated or contracted (i.e., OPG's unregulated assets with no OPA contracts and IPPs with
no OPA contracts)" and "a ssets that receive a regulated or contracted rate (i.e., OPG's regulated assets, OPG's
unregulated assets with OPA contract s, NUGs, and most IPPs)". Japan expl ains that the former category of
generators receive the same price – the HOEP – and that the second category of generators receive a price which
is in part based on the level of the HOEP. Japan's first written submission, para. 32.
480 Japan's first written submission, paras. 223-224.
481 Japan's first written submission, para. 222.
482 Japan's response to Panel question No. 7 (first se t); second written submission, paras. 8-12; opening
statement at the second meeting of the Panel, paras. 14-19; and response to Panel question No. 31 (second set).
483 Japan's first written submission, paras 223-224; opening statement at the second meeting of the
Panel, para. 19; responses to Panel question 28 (second set).
484 Japan's second written submission paras. 5-6; opening statement at the second meeting of the Panel,
paras. 11-12; comments on Canada's responses to Panel questions Nos. 1 and 42 (second set).
485 Japan's second written submission, paras. 3-7; opening statement at the second meeting of the Panel,
paras. 10-13; and comments on Canada's responses to Panel questions Nos. 1 and 42 (second set).

7.253 In response to Canada's submission that the pr oper market benchmark should be a price that
reflects the higher costs of production of renewabl e electricity, Japan argues that Canada has not
established that a distinct market for renewable elec tricity actually exists in Ontario, and therefore,
Canada's contention must be rejected. On the c ontrary, Japan emphasizes that there is no such
separate market because electricity is a commodi ty, and consumers in On tario find one unit of
electricity indistinguishable from another unit of electricity. Moreover, Japan notes that the FIT
Programme does not give consumers the option to c hoose a renewable source for the electricity they
use, and to pay a higher price for that electricity. Rather, according to Japan, the higher prices owed to
FIT generators are distributed across all consumers via the Global Adjustment to establish a single
price paid by consumers for electricity produced from all production technologies
486.
7.254 Finally, Japan calls the Panel's attention to the distinction between: (i) regulated prices that
cover production costs plus reasonable profit; and (ii) subsidized prices that cover production costs
plus reasonable profit. Japan submits that in a ma rket environment, the most efficient producer of
electricity (for example due to economies of scale) s hould be able to sell its electricity at a price
covering its production cost plus reasonable profit, and should be the dominant generator. According
to Japan, the market may even support this generator charging a higher price, but this generator may
not be permitted to sell at any higher price by virtue of governmental regulation. By contrast, Japan
argues that, in a market environment, less cost -efficient generators, such as renewable energy
generators, would be unable to survive competition w ith the dominant generator. In order to enable
such less cost-efficient generators to survive in the market despite th eir inferior cost-efficiency, Japan
submits that the government must subsidize them, which in Japan's view, is precisely what the FIT
Programme does in Ontario487.
(ii) European Union
7.255 Like Japan, the European Union advances tw o main lines of arguments to support its
allegations of benefit. First, relying on the sa me wholesale electricity price market benchmarks
advanced by Japan, the European Union submits that the challenged measures confer a benefit
because they guarantee that FIT and microFIT generato rs will receive a price for the electricity they
produce that exceeds the price of electricity on th e wholesale electricity market in Ontario, or
alternatively, in any one of the four out- of-Province jurisdictions referred to by Japan 488. Secondly,
the European Union argues that the inherent nature of the FIT Programme demonstrates the existence
of benefit because it reveals that the Programme is intended to facilitate private investment in new
renewable electricity generation that the wholesale market in Ontario is incapable of attracting. In this
regard, the European Union points to two main features of the FIT Programme: (i) the allegedly
above-market pricing for electricity that is produ ced by FIT generators; and (ii) the guaranteed 20-
year duration of such allegedly above-market pricing (including "generous" price escalation at various
intervals). According to the European Union, eith er of these features would not be available to the
same renewable electricity generators if they ha d to operate on the wholesale electricity market in
Ontario. Thus, the European Union submits that in the absence of the FIT Programme, the FIT
generators would have been unable to participate in Ontario's wholesale electricity market489.
7.256 The European Union rejects Canada's argument that the proper market benchmark should be a
price that reflects the higher costs of producti on of renewable electricity. Like Japan, the

486 Japan's opening statement at the first meeting of the Panel, paras. 30-45; and second written
submission, para. 23.
487 Japan's response to Panel question No. 33 (second set).
488 European Union's first written submission, paras. 65-88; second written submission, paras. 86-102.
489 European Union's second written submission, paras. 69-70, 103 and 105; opening statement at the
first meeting of the Panel, paras. 23 and 27.

European Union emphasizes that electricity is a commodity, and that regardless of whether it is
generated from a renewable or non-re newable source of energy, it is physically alike in all respects
and perfectly substitutable. Moreover, the European Union observes that the electricity prices paid by
consumers in Ontario do not distinguish betw een the different generating technologies. Thus,
according to the European Union, in the context of the present disputes, there can be only one relevant
product market for the purpose of the benefit analys is - the Ontario wholesale market for electricity
that is generated from all sources of energy (i.e. renewable and non-renewable energy)
490.
7.257 Were the Panel to decide that the relevant market benchmark should take into account the
existence of a distinction between electricity ge nerated from renewable and non-renewable sources of
energy, the European Union consider s that the Panel could also determ ine the existence of benefit on
the basis of the different prices that are guara nteed to FIT generators. In this regard, the
European Union notes that the FIT Price Schedule rev eals that the prices offered to generators using,
for example, waterpower, biomass or biogas technol ogies, are lower than the prices offered to wind
and solar PV generators. Thus, even assuming that there were a separate market for electricity
produced from renewable energy sources, the higher pr ices paid to generators using wind and solar
PV technologies compared with other "clean" technologies under the FIT Programme, demonstrate
that the challenged measures confer a benefit to the generators using wind and solar PV technology.
7.258 Finally, the European Union submits that even if, as Canada argues, the cost of generating
wind and solar electricity were an appropriate be nchmark for the Panel's benefit analysis, the FIT
Programme would nevertheless confer a benefit becau se it offers standardized prices to all generators
regardless of their actual costs of production. According to the European Union, the fact that the
location of a generating plant using solar or wind energy will influence its productivity implies that
facilities in good locations will have relatively lo wer overall costs of production given that capital
costs between different plants will be very similar. This, in turn, means that the standard pricing
applied under the FIT Programme will inevitably ex ceed the costs of production of producers with
facilities in good locations, and for this reason, will confer a benefit upon such generators. In this
regard, the European Union recalls that the predecessor to the FIT Programme (the RESOP)
functioned on the basis of the best prices offere d by generators through a bidding process. Thus, the
European Union submits that it is possible for Onta rio to obtain electricity produced from renewable
energy sources at lower cost compared with what is guaranteed under the FIT Programme491.
(iii) Canada
7.259 Canada argues that the complainants have failed to establish that the challenged measures
confer a benefit because their proposed electricity price benchmarks ignore the fundamental condition
underlying the Government of Ontario's purchase of electricity under the FIT Programme, namely,
that the purchased electricity is generated from re newable sources of energy. According to Canada,
the appropriate electricity price benchmark for the purpose of the Panel's benefit analysis must be
found on the "market" for electricity produced from wind and solar PV technology, reflecting the fact
that it is the Government of Ontario (not the end- consumer) that is the purchaser of the electricity
supplied under the FIT Programme. Canada suggests that such a benchmark may, in the first instance,
be found in the prices paid in Ontario by private purchasers of electricity produced using windpower
and solar PV technology. However, in Canada's vi ew, the complainants have failed to advance any
such benchmarks of this kind, including any altern atives based on, for example, the constructed costs

490 European Union's second written submission, paras. 72-77; and opening statement at the first
491 European Union's second written submission, paras. 82-85. The European Union also advances the
use of import/export prices as a commercial benchmark in the present case. See, European Union's second
written submission, para. 95.

of producing electricity generated using wind and solar PV technology or appropriate out-of-Province
electricity prices adjusted for the conditions in Ontario
492.
7.260 Canada emphasizes that it would be inappropriate to use an electricity price benchmark that
reflects a single price for blended or co-mingled commodity electricity, such as the HOEP, because
there is no single market for such electricity in Ontario and the different generating technologies do
not compete with each other. In this regard, Canada asserts that because of the range of factors that
must be taken into account in order to secure a reliab le and clean supply of electricity in Ontario, the
varying cost structures and inherent attributes of the different generation technologies needed to
achieve this objective must be taken into account and ultimately reflected in differential pricing.
Canada explains that, for the most part, this is done by the Ontario Government through the
application of regulated and contracted prices that are higher than the HOEP 493. According to Canada,
this approach to securing a sufficient electric ity supply recognizes the limitations of wholesale
markets worldwide in offering ad equate incentives to new genera tion. This dilemma, known as the
"missing money" problem, arises in electricity systems in which wholesale prices do not provide
adequate compensation to pay for the fixed costs of generators or the total investment costs of new
generators, with the resulting effect that investors will not decide to enter the market494.
7.261 Apart from criticizing the complainants' proposed electricity price benchmarks on the basis
that they represent a price for blended or co-mingl ed commodity electricity that does not reflect the
nature of the challenged financ ial contributions and the "missi ng money" reality of wholesale
electricity markets in Ontario and other juri sdictions, Canada rejects the complainants'
characterization of the IESO-administered wholesal e electricity market as a "competitive" market.
According to Canada, the market clearing mechan ism that produces the HOEP is merely a tool
created by the Government of Ontario to help the IESO make dispatch decisions in order to balance
physical supply and demand for electricity 495. Canada asserts that the majority of generators
participate in this mechanism by offering electricity at prices that do not cover their costs of
production or any amount of return. These generato rs do not make price and volume offers on the
grounds of ordinary commercial cons iderations, but rather to ensure that their electricity output is
accepted by the IESO in order to earn the relevant regulated or contract price 496. Thus, according to
Canada, the HOEP does not reflect the costs and ot her operating conditions that most producers of
electricity in Ontario face. Moreover, Canada points out that FIT generators do not make bids in the
IESO market-clearing mechanism.
7.262 Canada contrasts the IESO-administered market that exists today with the liberalized
wholesale electricity market that existed in On tario between May and November 2002. Whereas the
latter market functioned as a "venue" where buyers and sellers met to exchange electricity at an
equilibrium price balancing supply and demand, Canada explains that the IESO-administered market
that exists today does not set the price received by the vast majority of generators representing 92% of
Ontario's generation capacity 497. Moreover, Canada observes that the facilities that today receive the
HOEP alone are older, state-owned, hydro and coal plants that the Government of Ontario has decided

492 For instance, Canada's first written submission (DS412), paras. 125 and 136-150; first written
submission (DS426), paras. 64-66; and opening statement at the second meeting of the Panel, paras. 111-120
and 136-142.
493 Canada's first written submission (DS412), para s. 130-140; and first written submission (DS426),
paras. 64-81.
494 Canada's first written submission (DS412), para. 35; and first written submission (DS426), para. 72.
495 Canada's first written submission (DS426), para. 8.
496 Canada's first written submission (DS426), paras. 67-81; and first written submission (DS412),
para. 138.
497 Canada's opening statement at the second meeting of the Panel, paras. 113-117.

do not require higher contract or regulated rates in the light of largely depreciated capital costs, as
well as (in the case of the coal facilities) imminent decommissioning
498.
7.263 Finally, Canada also contests the view that in the absence of the FIT Programme, the FIT
generators would be left with having to survive on the basis of the HOEP. According to Canada, this
counterfactual is incorrect because "in all likelihood ", a prospective renewable electricity generator
would approach the Government of Ontario through the OPA and attempt to negotiate a contract for
the sale of electricity at prices reflective of the prevailing market conditions, which include the
generator's costs of production and the government's supply requirements
499.
(b) Arguments of the third parties
(i) Australia
7.264 In Australia's view, the relevant market in th ese disputes, for purposes of the benefit analysis,
is the electricity market. In its analysis of bene fit, Canada predominantly focuses on the conditions of
supply of renewable energy. However, Australia ar gues that the Panel should also consider the
demand side of the electricity market in examining benefit, noting that consumers of electricity in
Ontario do not – and cannot – distinguish be tween renewable and non-renewable sources of
electricity. Moreover, Australia does not consider that the difference in the production costs for
different energy types precludes a benefit analysis us ing the market price for electricity. In Australia's
view, there are two possible ways in which FIT Contr acts confer a benefit to FIT generators. First, the
governmental support establishes a buyer for the rene wable energy that would not otherwise exist.
Second, FIT generators receive a higher price for th eir product than that which is otherwise available
on the market. With regards to the second option, Australia considers that the HOEP used by the
complainants is an appropriate comparator for determining benefit500.
(ii) Brazil
7.265 Brazil considers that the appropriate benchmar k in these disputes should be assessed in the
light of the Appellate Body Report in EC and certain member States – Large Civil Aircraft . Brazil
argues that the appropriate benchmark should take into account both the supply and the demand sides
in the energy market, and thus cannot be based so lely on the prices for which certain types of
producers are willing to sell, or the prices set fort h by the government. In addition, Brazil contends
that the wholesale unregulated market prices in a strategic sector of an economy cannot form the basis
for this benchmark501.
(iii) China
7.266 China argues that the consideration of whether a benefit was conferred does not depend on the
"proportion of non-subsidized recipients" or on the production cost of the recipient of a subsidy. With
regard to the proportion of non-subsidized recipien ts, China considers that Canada has not addressed
in detail (i) why the electricity market in Ontario is distorted due to the presence of the Government of
Ontario as a "predominant" purchaser, and (ii) other factors that may affect the assessment of an
appropriate benchmark. Moreover, China contends that the cost of production is not an appropriate
basis to determine the benchmark price. China fails to see the reason why the HOEP is not an

498 Canada's opening statement at the second meeting of the Panel, paras. 118-119.
499 Canada's opening statement at the second meeting of the Panel, paras. 128-129.
500 Australia's third-party submission (DS412), paras. 11-15; third-party submission (DS426),
paras. 11-15; and third-party statement (DS412 and DS426), paras. 11-20.
501 Brazil's third-party statement (DS412 and DS426), paras. 9-13.

appropriate benchmark, taking into account that electricity from renewable energy and that from other
forms of energy are similar and comparable
502.
(iv) European Union (in WT/DS412)
7.267 As a third party in WT/DS412, the European Union contends that the FIT Programme will
result in most cases in a benefit to FIT generators due to the difference between the market prices and
the guaranteed prices. In the European Union's view, the benefit assessment should focus on the
relevant market benchmark at the time the financial contribution is granted to the recipient503.
(v) Korea
7.268 Korea notes that the selection of a "market price" for the benefit analysis at times requires a
complex analysis that may involve an examination of returns over a longer period of time. Taking into
account that individuals have different time horizons, rational market participants may assign different
weights to the short-term and long-term conseque nces of a transaction, and thus value the overall
return quite differently. Korea recalls that it is common for profit-maximizing businesses to accept a
short-term loss in order to obtain a greater long-term profit. From this perspective, it is not simple to
select an appropriate benchmark where, as in th ese disputes, complex long-term business and policy
considerations, and investments with lengthy pay- back periods, are involved. Thus, Korea considers
that a snap shot at a single moment of time ma y not necessarily ensure a reliable comparison that
takes into account the real market situation, as mandated by Article 14 of the SCM Agreement504.
(vi) Kingdom of Saudi Arabia
7.269 Saudi Arabia considers that, pursuant to WTO rules, the domestic market provides the most
appropriate benchmark in determin ing the existence and magnitude of a subsidy benefit. In Saudi
Arabia's view, resort to external benchmarks, such as international market prices or prices in third
countries, is generally inappropriate. Saudi Arabia contends that a panel may not use external
benchmarks to measure the amount of "benefit" unless it has established that private prices in the
country of provision are distorted, as defined by the Appellate Body in US – Softwood Lumber IV505.
(c) Evaluation of the Panel
(i) Introduction
7.270 By way of introduction, we note that although the primary purpose of the complainants'
benefit arguments was to substantiate their views th at the challenged measures, when characterized as
direct or potential direct transfers of funds under the terms of Article 1.1(a)(1)(i) of the
SCM Agreement, and/or income or price support within the meaning of Article 1.1(a)(2), confer a
benefit, we understand them to ha ve each submitted that the same arguments have equal relevance
and application to any analysis that would need to be undertaken for the purpose of evaluating
whether the challenged measures, when characterized as government purchases of goods , confer a

502 China's third-party submission (DS412), paras. 23-38; and third-party statement (DS412 and
DS426), para. 4.
503 European Union's third-party submission (DS412), paras. 21-22.
504 Korea's third-party submission (DS412), paras. 46-54.
505 Saudi Arabia's third-party submission (DS412), paras. 18-28; third-party submission (DS426),
paras. 18-28; and third-party statement (DS412 and DS426), paras. 8-14.

benefit
506. In this regard, we recall that both complain ants have emphasized that were the challenged
measures to be characterized as government purchases of goods, this would be consistent with their
views that they amount to financial contributions 507. Thus, although primarily submitted for the
purpose of substantiating a different line of subsidiz ation arguments, we see no legal impediment to
evaluating the merits of the same contenti ons for the purpose of establishing whether the
complainants have established that the challenged measures amount to subsidies when characterized
as "government purchases [of] goods". To this end, we now turn to examine the parties' arguments by
first recalling the relevant legal st andard for the determination of th e existence of "benefit" under the
terms of Article 1.1(b) of the SCM Agreement. We then review the parties' specific assertions about
how the FIT Programme, and the FIT and microFIT Cont racts, confer (or do not confer) a "benefit" in
the light of the relevant legal standard, directing particular attention to the extent to which the
wholesale market for electricity in Ontario should be the appropriate focus of the benefit analysis.
Finally, in last part of our evaluation, we set out our conclusions on the merits of the complainants'
submissions in the light of our findings about the relevant focus of benefit analysis.
(ii) The legal standard for determining the existence of "benefit"
7.271 A financial contribution will confer a bene fit upon a recipient within the meaning of
Article 1.1(b) of the SCM Agreement when it provides an advantage to its recipient 508. It is well
established that the existence of any such advantage is to be determined by comparing the position of
the recipient with and without the financial contribution, and that "the marketplace provides an
appropriate basis for [making this] comparison"
509. Article 14(d) of the SCM Agreement establishes
guidelines for calculating the amount of subsidy in terms of benefit when there has been a government
purchase of goods for the purpose of countervailing duty investigations. Al though not intended to
define the circumstances when a government purch ase of goods will confer a benefit in disputes
involving Part III of the SCM Agreement, Article 14(d) provides useful context for the analysis that is
required in the present disputes. Article 14(d) reads as follows:
[T]he provision of goods or services or purchase of goods by a government shall not
be considered as conferring a benefit unl ess the provision is made for less than
adequate remuneration, or the purchase is made for more than adequate remuneration.
The adequacy of remuneration shall be dete rmined in relation to prevailing market
conditions for the good or service in question in the country of provision or purchase
(including price, quality, availability, marketability, transportation and other
conditions of purchase or sale).
7.272 On its face, Article 14(d) stipulates that a government purchase of goods will not confer a
benefit upon a recipient unless it is made for "mor e than adequate remuneration", and that the
adequacy of this remuneration must be evaluated in relation to the "prevailing market conditions" for
the good in question in the country of purchase, including "price, quality, availability, marketability,

506 European Union's opening statement at the second meeting of the Panel, para. 23; second written
submission, para. 53; response to Panel question No. 21 (second set); and Japan's response to Panel question
No. 22 (second set).
507 European Union's first written submission, para. 54 ; response to Panel question No. 12 (first set);
and Japan's response to Panel question No. 22 (second set).
508 Appellate Body Report, US – Softwood Lumber IV, para. 51.
509 Appellate Body Report, Canada – Aircraft , para. 157. We note that to date, the "marketplace" has
not been explicitly used as a benchmark to determine whether financial contributions taking the form of the
measures described in Article 1.1(a)(ii) of the SCM Agreement (i.e. where "government revenue that is
otherwise due is foregone or not collected (e.g. fiscal in centives such as tax credits)") confer a benefit. Panel
Reports, US – FSC , para. 7.103; and US – FSC (Article 21.5 – EC) , paras. 8.44-8.48; and Appellate Body

transportation and other conditions of purchase or sal e". Thus, in the context of the present disputes,
Article 14(d) suggests that one way to demonstrate that the challenged measures confer a benefit is by
showing that the remuneration provided to FIT ge nerators using windpower and solar PV technology
to produce the electricity purchased by the OPA is "more than adequate" compared with the
remuneration the same generators would receive on the "market" for electricity in Ontario, in the light
of the "prevailing market conditions". As we see it, the starting point for this analysis is the
identification of the relevant "market".
7.273 In US – Upland Cotton , the Appellate Body defined a "m arket" as "the area of economic
activity in which buyers and sellers come toge ther and the forces of supply and demand affect
prices"
510. Similarly, in EC and certain member States – Large Civil Aircraft , the Appellate Body
clarified that the "marketplace to which the Appellate Body referred in Canada – Aircraft reflects a
sphere in which goods and services are exch anged between willing buyers and sellers" 511. Moreover,
the Appellate Body has explained that:
The terms of a financial transaction must be assessed against the terms that would
result from unconstrained exchange in the re levant market. The relevant market may
be more or less developed; it may be made up of many or few participants. ... In some
instances, the market may be more rudiment ary. In other instances, it may be difficult
to establish the relevant market and its r esults. But these informational constraints do
not alter the basic framework from which th e analysis should proceed. ... There is but
one standard—the market standard … 512
7.274 In the specific context of Article 14(d), however , the relevant "marketplace" need not be one
that is "undistorted by government intervention" or that excludes "situations in which there is
government involvement"513. The relevant "market" need not be a "pure" marketplace that is devoid of
any degree of government intervention 514. Nevertheless, in previous disputes involving a government
provision of goods, it has been held that where a " government's role in providing a financial
contribution is so predominant that it effectively determines the price at which private suppliers will
sell the same or similar goods, … the comparis on contemplated by Article 14 would become
circular"515. In other words, where a government's involve ment as a provider of a particular good in a
given market is such that "there is no way of te lling whether the recipient is 'better off' absent the
financial contribution"516, the market that is the object of the government intervention cannot serve as
an appropriate benchmark for the purpose of Article 14(d). We see no reason why the same
considerations should not also apply to situations involving government purchases of goods.
7.275 Thus, as we understand the relevant jurispruden ce, the "market" against which to evaluate
whether a financial contribution in the form of a government purchase of goods confers a benefit need

510 Appellate Body Report, EC and certain member States – LCA , para. 1122, referring to Appellate
Body Report, US – Upland Cotton , para. 408. The Appellate Body also noted that "The term 'market' has been
defined as '{g}enerally, any context in which the sale a nd purchase of goods and services takes place' and '{a}
collection of homogenous transactions. A market is creat ed whenever potential sellers of a product are brought
into contact with potential buyers and a me ans of exchange.'" Appellate Body Report, EC and certain member
States – LCA, fn. 2467.
511 Appellate Body Report, EC and certain member States – LCA, para. 981.
512 Appellate Body Report, Japan – DRAMs (Korea), para. 172.
513 Appellate Body Report, US – Softwood Lumber IV , para. 87; and Panel Report, US – Softwood
Lumber IV, paras. 7.50-7.51.
514 Appellate Body Report, US – Softwood Lumber IV , para. 87; and Panel Report, US – Softwood
Lumber IV, paras. 7.50-7.51.
515 Appellate Body Report, US – Softwood Lumber IV, para. 93.
516 Appellate Body Report, US – Softwood Lumber IV, para. 93.

not be one that is necessarily "perfectly competitive" in the sense of economic theory
517. However, it
must nevertheless be a market where there is eff ective competition, in the sense that prices for the
purchased good must be established through the ope ration of unconstrained forces of supply and
demand, and not by means of government interven tion of a kind that renders "the comparison
contemplated by Article 14 … circular" 518. With this legal standard in mind, we turn to evaluate the
merits of the parties' arguments.
(iii) The wholesale market for electricity as the relevant focus of the benefit analysis519
7.276 Fundamentally, the complainants' first and main line of benefit argument is that in the
absence of the FIT Programme, a competitive wholesale market for electricity in Ontario could not
support commercially viable operations of the co ntested FIT generators because the terms and
conditions, including price, that would be attached to private purchases of electricity in such a market
would expose them to significantly lower revenues and higher commercial risks compared with the
terms and conditions assoc iated with participation in the FI T Programme. To substantiate this
argument, the complainants advance a number of proposed competitive wholesale market electricity
price benchmarks, or proxies for this benchmark, that they submit demonstrate that the FIT
Programme provides "more than adequate remuneration" for the OPA's purchases of electricity under
the FIT and microFIT Contracts. The complainants also focus on the long-term (20-year) guaranteed
pricing that is available under the FIT Programme, arguing that no such condition would be available
from a private purchaser of electricity on the releva nt market. Moreover, the complainants' note that
one of the key uncontested objectives of the FIT Programme is to induce new investment in
renewable energy generation facilities, arguing that this alone demonstrates that relevant FIT
generators would not be operating in the Ontario wholesale electricity market in the absence of the
FIT Programme.
7.277 Canada accepts that "most" of the contested FIT generators would be unable to conduct viable
operations in a competitive wholesale market for electri city in Ontario. Indeed, Canada points out that
one of the objectives of the FIT Programme was to encourage the construction of new renewable
energy generation facilities that w ould not have otherwise existed
520. However, Canada rejects the
view that this demonstrates that the OPA's purchases of electricity under the FIT Programme confer a
benefit within the meaning of Article 1.1(b) of th e SCM Agreement. Canada explains that the OPA's
purchases of electricity, including from renewable en ergy generators under the FIT Programme, have
been motivated by the inability of Ontario's wholesal e electricity market to encourage the investment
in new electricity generation facilities needed to secure a reliable and clean supply of electricity that is
sufficient to meet Ontario's long-term requirements (i.e. the "missing money" problem) 521. Canada
emphasizes that given the different costs associated with the different technologies that must operate
to achieve this objective, the most appropriate benchmark for the Panel's benefit analysis in relation to
the FIT and microFIT Contracts must reflect what it considers to be the fundamental condition for the

517 According to Nicholson, a perfectly competitive i ndustry is one with the following characteristics:
(a) a large number of firms producing a homogeneous product; (b) firms attempting to maximize profits;
(c) firms assume that their own actions have no influence on market prices, i.e. they are price takers; (d) perfect
information, i.e. prices are known by all market participants including co nsumers, and (e) costless transactions.
W. Nicholson, Microeconomic Theory: Basic Principles and Extension , 8th ed. (Thomson Learning, 2002)
("Nicholson 2002"), p. 370.
518 Unless otherwise indicated, we refer to this legal standard in the remainder of these Reports as either
a "competitive" market or a market "where there is effective competition".
519 The dissenting opinion of one of the members of the Panel with respect to whether the challenged
measures confer a benefit within the meaning of Article 1.1(b) of the SCM Agreement is set out in Section IX of
these Reports.
520 Canada's first written submission (DS412), para. 49.

Government of Ontario's purchases of electric ity under the FIT Programme, namely, that the
electricity be produced from renewable energy so urces. Thus, Canada submits that the relevant
"market" comparator must be the market for elect ricity produced from wind and solar PV generation
technologies.
7.278 The different positions held by the complain ants and Canada about what should be the
appropriate "market" benchmark raise a number of important questions related to the nature of
competitive wholesale electricity markets and the suitability of using one or more alleged examples of
such markets to determine the existence of benefit in the present disputes. It is to these questions that
we now turn, starting first with the "missing money" problem.
The economics of electricity markets and the "missing money" problem
7.279 As we have previously explained
522, electricity has some specific properties compared to
other types of goods. It is intangible and, with some limited exceptions, cannot be effectively
stored523. It is also delivered to consumers through networks of transmission and distribution lines that
can fail if the quantity demanded (known as load) is greater or less than the quantity supplied for any
length of time. These properties imply that electricity must be produced at the time that it is
consumed, and that the flow of electricity through a transmission grid cannot be left to the choices of
individual market participants, but rather it must be centrally coordinated and controlled 524.
Consumers, and therefore governments, regard el ectricity as an essential commodity because a safe,
reliable and long-term supply is necessary for th e smooth functioning of all modern economies. The
fact that there are no close substitutes for electricity , combined with a lack of easily observable price
signals on the demand side 525, implies that electricity demand is largely unresponsive to prices in the
short run (i.e. it is relatively inelastic) 526. Graphically, the demand curve can therefore be represented
by a (nearly) vertical line in a traditional supply/ demand diagram. This demand curve will shift from
left to right and back again over the course of an h our, a day, a week, a month or year, as factors other
than price cause the quantity demanded to change . Such factors include temperature, hours of
daylight, time of the year and the structure and pe rformance of an economy. The seasonal fluctuations
in the demand for electricity in Ontario are depicted in the following diagram527.

522 See above paras. 7.11-7.13.
523 As already noted, pumped-storage hydroelectri c facilities provide a limited means of storing
electricity. See above fn. 47.
524 Hogan Report, Exhibit CDA-2, p. 13. The credentials of Professor William W. Hogan, the author of
the Hogan Report, are set out above at fn. 47.
525 Most consumers are unaware of th e price of electricity at the mome nt that they use it. This causes
them to consume more than they otherwise would in tim es of scarcity, and less than they otherwise would in
times of surplus. Hogan Report, Exhibit CDA-2, p. 39; and Electricity Conservation and Supply Task Force,
"Tough Choices: Addressing Ontario's Power Needs", Final Report to the Minister of Energy, January 2004,
("2004 Report of the ECSTF"), Exhibit CDA-59, pp. 38-39.
526 IESO: Ontario's Physical Markets, Exhibit JPN-80, p. 4 ("Non-dispatchable loads simply draw
electricity from the grid as needed. They pay the wholesale market pri ce for electricity at the time of
consumption, regardless of what the price might be. Non-dispatchable loads account for most of the energy
consumed in Ontario"). See also Hogan Report, Exhibit CDA-2, p. 16-17.
527 Smoothing the Peaks, IESO website ("IESO: Smoothing the Peaks"): referred to in
European Union's second written submission, fn. 71.

Diagram 4: Seasonal Fluctuations in the Demand for Electricity in Ontario

7.280 It is generally accepted that a diverse mix of generation tec hnology is desirable on the supply
side in the interest of securing a reliable and clean electricity system. Indeed, as we have explained
elsewhere528, the use of a range of generation technologies is a technical, economic and environmental
imperative. The "conventional" 529 technologies can be separated into base-load generation
(characterized by high fixed and low marginal co sts, e.g. nuclear power), intermediate generation
(moderate fixed and marginal costs, e.g. oil or g as-fired steam), and peak-load generation (low fixed
costs and high marginal costs, e.g. single cycle gas combustion turbines) 530. Base-load generators are
designed to operate almost always 531, supplying electricity to satisfy core and sustained levels of
demand in most hours of the day and, importantly, k eep the grid "alive". Intermediate-load plants are
used to supply electricity during periods when de mand is above core minimum levels, but not at its
peak. These generators typically ope rate during the day and evening 532. Peak-load generators satisfy
demand when it is very high, such as during the hottest days of summer, and some may operate for
only a few hours per day
533. The ability of generators to adjust their level of output quickly, known as
dispatchability, tends to be lowest for base-load genera tors and highest for peak-load generators.
Although hydroelectricity is usually classified as base load power, certain types of hydroelectric
facilities can be dispatched 534. Electricity generation by means of solar PV and wind technology
provides variable or intermittent generation, meaning that power is produced only during certain times
of the day and/or night. Typically, both types of facilities have relatively high capital costs per MW of
energy produced 535, but they have little or no variable cost 536. To replace part of the generating

528 See above at paras. 7.13-7.18.
529 Hogan Report, Exhibit CDA-2, p. 6.
530 Hogan Report, Exhibit CDA-2, pp. 2-10; and The Tellus Institute, "Best Practice Guide: Integrated
Resource Planning for Electricity", 200 0, ("Best Practice Guide: Integrated Resource Planning for Electricity"),
Exhibit CDA-45, pp. 13-15.
531 According to Professor Hogan, base-load generators operate "for most hours of the year, perhaps
50% to 80% or more". Hogan Report, Exhibit CDA-2, p. 3.
532 According to Professor Hogan, intermediate-load ge nerators "typically achiev[e] capacity factors of
15%-50%". Hogan Report, Exhibit CDA-2, p. 5.
533 Hogan Report, Exhibit CDA-2, p. 6.
534 Hogan Report, Exhibit CDA-2, p. 5.
535 In 2007, the capital cost of roof-mounted (0.5 MW) and ground-mounted (10 MW) solar facilities
were, respectively, estimated to be CAD 6,690/kW and CAD 4,600/kW; and the capital cost of a "small wind
farm" (10 MW) was estimated to be CAD 2,750. Thes e figures compare with th e 2007 capital costs of

capacity that will be lost when Ontario's coal-fi red plants will be decommissioned at the end of
2014
537, Ontario's supply mix has expanded to include renewable technologies like wind and solar PV.
It is expected that these technologies will account for 11.5% of Ontario's generating capacity by
2030538. The mix of electricity generation that existed in Ontario in 2010 and selected characteristics
are set out in the following table539.

Table 2: Ontario Electricity Generation Mix

7.281 In a wholesale electricity market where there is effective competition, the bids that generators
submit to the system operator should be usually qui te close to their marginal cost of production 540.
Plotting such bids against their output defin es a supply curve in the traditional supply/demand
framework. Given these particular characteristics, th e supply curve of a typical mix of generators
would appear as an upward sloping step function that rises sharply as output approaches the market's
capacity limit.

CAD 2,970 for nuclear (1000 MW), CAD 665 for frame single-cycle gas turbine (340 MW), and CAD 924 for
combined-cycle gas turbine (500 MW) facilities. Hogan Report, Exhibit CDA-2, p. 8.
536 Hogan Report, Exhibit CDA-2, p. 6.
537 In 2003, coal-fir ed facilities accounted for 25% of Ontario' s generation capacity, having increased
by 127% from 1995 levels. Among the motivations for eliminating Ontario's coal-fired facilities appear to have
been the conclusions reached in a 20 05 study prepared for the Government ("Cost Benefit Analysis: Replacing
Ontario's Coal-Fired Electricity Generation"), which foun d the annual health and envir onmental costs of coal at
CAD 3 billion. Ontario's Long-Term Energy Plan, Exhibit CDA-6, pp. 2 and 19.
538 Ontario's Long-Term Energy Plan, Exhibit CDA-6, p. 19.
539 Hogan Report, Exhibit CDA-2, Table 2, p. 12.
540 Hogan Report, Exhibit CDA-2, p. 16. More generally, it is recognized that, as long as a firm chooses
to produce a positive amount of output , equating price and marginal cost is equivalent to profit maximization
behaviour. See G. Jehle and P. Reny, Advanced Microeconomic Theory , 2nd ed. (Addison Wesley Longman,
2001), p. 144.

7.282 As usual, the intersection of supply and de mand determines the market clearing price and
quantity of electricity. However the steepness of both curves in typical electricity markets suggests
that prices may be extremely volatile, rising or falling sharply in response to small changes in demand
and/or supply. This is not necessarily an undesirabl e feature in an electricity market. As long as
certain criteria are met (e.g. well informed cons umers on the demand side, free entry/exit on the
supply side), economic theory suggests that the outcome should be socially desirable
541. For example,
high prices should encourage households and busin esses to consume less of the scarce commodity.
Elevated prices also provide incentives for incumben t generators to increase their output and for new
firms to enter the market by investing in new genera tion. Thus, in theory, "a well designed" electricity
market will provide for a long-term equilibrium "built around a sequence of short-run wholesale
market spot prices [that] would provide adequate incentive and compensation to support investment in
new electricity generation" 542. However, as Professor Hogan explai ns, "this theoretical market ideal
has not yet been achieved in many elect ricity systems, including in Ontario" 543. As we understand it,
one of the main reasons for this is the comple xity of incorporating appropriate demand-side
responsiveness to supply-side price signals in times of scarcity - or, in other words, the difficulty of
equipping electricity consumers with the informati on and means they need to respond to electricity
supply constraints in real-time544.
7.283 In the absence of demand that is more responsive (but not only for this reason), governments
and regulators have sought to control potential/actua l price volatility by intervening in the market
because of the value of stable electricity prices to their economies, with the consequence that many
countries have experienced insufficient investment in generation because the price achieved on their
"organized" wholesale market is not allowed to rise to a level that, in the long-run, fully compensates
generators for the all-in cost of their investments (including fixed and sunk costs) 545. Private investors
will not be willing to finance construction of new generation under such conditions; and in the
absence of such investment, an elect ricity market will be unable to reliably meet future electricity
demand. This is referred to as the "missing money" problem 546, and it affects not only more expensive
solar PV and wind generation technologies, but also "conventional generating technologies, where
energy-only markets do not support investment" 547. To resolve this dilemma, "alternative mechanisms
to wholesale spot markets have been required to pr ovide incentives for long-term investment to meet
forecasted demand", including power purchase agreements (as in Ontario) and "capacity"
payments
548.
7.284 Thus, because of the specific features of elect ricity and the nature of competitive wholesale
electricity markets, government intervention will ofte n be necessary in order to secure an electricity
supply that is safe, reliable and sustainable in the long-term.

541 These conditions allow real-world market outco mes to approximate ideal market outcomes under
perfect competition (see above fn. 517). In a partial equilibrium competitive model, the competitive outcome is
"efficient" in that it maximizes overall welfare as measur ed by the sum of consumer and producer surplus. See
Nicholson 2002, p. 402.
542 Hogan Report, Exhibit CDA-2, p. 16.
543 Hogan Report, Exhibit CDA-2, p. 17.
544 Hogan Report, Exhibit CDA-2, p. 16.
545 Hogan Report, Exhibit CDA-2, pp. 13 and 15-19.
546 Hogan Report, Exhibit CDA-2, pp. 18-19.
547 Hogan Report, Exhibit CDA-2, p. 17.
548 The Hogan Report defines electric "capacity" as "the capability of a generating unit to produce
electricity (measured in kilowatts)". The Hogan Report notes that three regions in the United States – "PJM,
New York and New England operate capacity markets to su pplement spot market payments for electricity and
ancillary services". Hogan Report, Exhibit CDA-2, pp. 13 and 18, and fn. 17 and 21.

Ontario's 2002 wholesale electricity market experience
7.285 The complainants assert that a competitive wholesal e market for electricity existed in Ontario
in 2002. Canada accepts that such a mark et existed between May and November 2002
549. During this
seven month period, electricity generated from fac ilities accounting for 94% of Ontario's generation
capacity was bought and sold on the wholesale market at prices set through a market clearing
mechanism administered by the Independent Market Operator 550. As much as 90% of the generating
capacity operating during this period was government owned and operated through the OPG 551, which
was subject to a Market Power Mitigation Agr eement imposing a price/revenue cap and other
obligations to curtail its potential ma rket power as the dominant operator 552. Despite this, Canada
explains that the wholesale market was "premised on all generators (including those owned by the
government through Ontario Power Generation (OPG )) offering their electricity into the wholesale
market based on their marginal costs of production" 553. According to Canada, it was "hoped that this
would allow generators to recover their operating and capital costs and earn a return"554.
7.286 The mix of electricity generation technologies that operated in 2002 included nuclear, coal,
hydroelectric and oil/gas facilities, which together ac counted for over 99% of total available capacity
(29,523 MW) and total electricity output (149,690 GWh) in 2002 555. Although additional nuclear
capacity owned by OPG had been expected to come into operation during the course of 2001 556, this
was delayed significantly and therefore was not available at the time of market opening 557. It was
partly due to events that transpired because of the unavailability of th is additional generation

549 Canada's first written submission, para. 25; and response to Panel question No. 1 (second set).
550 The remaining 6% was accounted for by elect ricity produced from NUGs, which were paid
according to prices contained in pre- existing contracts with Hydro One, wh ich were taken over by the OEFC.
Canada's responses to Panel questions Nos. 1 and 26 (first set); and first written submission, para. 22(iv).
551 In 2000, that is, two years before the "competitive" market was opened, 90% of Ontario's generating
capacity was controlled by Ontario Power Generation. Final Report of the Market Design Committee to the
Honourable Jim Wilson, Minister of Energy, Science and Technology, 29 January 1999, ("Final Report of the
Market Design Committee"), Exhibit CDA-9. In 2011, the OPG accounted for approximately 70% of Ontario's
generation capacity. Ontario Power Generation, Freque ntly Asked Questions, OPG website ("OPG FAQ"),
Exhibit CDA-8. See also Ontario Power Generation, About OPG, OPG website, ("About OPG"), Exhibit CDA-
10; and About the Ministry of Energy, Exhibit JPN-52.
552 Final Report of the Market Design Committee, Exhibit CDA-9; and Ontario Energy Board, EB-
2007-0905, In the Matter of an Application By Ontario Power Generation Inc., Payment Amounts for Prescribed
Facilities, Decision with Reasons, 3 November 2008, ("OEB Decision on Payment Amounts for Prescribed
Facilities"), Exhibit JPN-233, pp. 2-3.
555 Other "miscellaneous" technologies accounted for less than 1% of capacity and output. Canada's
response to Panel question No. 1 (second set).
556 The first unit of the OPG's nuclear facilities at Pickering was initially expected to become available
on 13 November 2001. On 17 Decem ber 2001, the IMO announced that th is would be delayed until mid-2002.
IMO, 18-Month Outlook: An Assessment of the Adequacy of the Ontario Electricity System from January 2002
to June 2003, ("IMO: 18-Month Outlook"), Exhibit CDA-90.
557 According to Ontario's Long-Term Energy Plan, Exhibit CDA-6, Bruce Units 3 and 4 were returned
to service in March 2004 and November 2003, resp ectively, while Pickering A Unit 1 was restarted in
November 2005.

capacity
558, as well as a pre-existing lack of investment in new sources of generation, that Ontario's
wholesale electricity market was brought to an end559.
7.287 Canada explains that over the summer of 2002 , very high temperatures drove up demand to
levels that could not be satisfied by existing s uppliers without significant price increases. Between
May and November 2002, prices rose by an average of over 30% 560. Canada attributes the inability of
suppliers to respond to the spike in demand w ithout significant price increases to the "market
structure" that existed during this period, and the delay in re-establishing production at the Pickering
Unit 4 nuclear plant
561. Japan also appears to make the form er point, asserting that it was because "the
established market structure did not invite the su fficient entry of new generators … [that] the
Government of Ontario enacted the Electricity Restructuring Act, 2004, amending the Electricity
Act, 1998"
562.
7.288 In its Final Report to the Minister of Energy, the Electricity Conservation and Supply Task
Force563 (the "ECSTF") identified a number of events that took place around and during the period of
the existence of the wholesale market that shaped the conditions in which it was required to operate.
In particular, the ECSTF highlighted that the "financi al markets expected to underwrite new capacity
were severely impacted by Enron's collapse" and "the long-term energy trading market" at least
temporarily ceased to function 564. According to the ECSTF, this "l oss undercut merchant generation,
merchant transmission and robust emissions trading" 565. Similarly, the ECSTF observed that the
"retreat of the financial markets from the electri city industry" had the effect of slowing the
development and construction of new gas-fired facilities, which were also impacted by "spiking
natural gas prices and concerns over long-term supplies" 566. Indeed, the ECSTF points out that during
the period under review, gas-fired plants "became in creasingly viewed as a fuel most appropriate for
intermediate and peaking operations, rather than baseload"567. Obviously, this has implications for the
economics of any future investment in gas generation, as intermedia te and peaking plants would be
expected to operate less than baseload plants . Finally, like Canada, the ECSTF emphasizes that
"delays and cost increases in retu rning the four Pickering A nuclear units to service contributed to
reduced supply and higher and more volatile prices" , noting that this "added to concern that the
Government would continue to make uneconomic investment deci sions that would damage the
competitive position of competing suppliers in the market"568.

558 In 1997, the Ontario Government decided to take seven nuclear reactors off-line to address "critical
maintenance and repair needs". This amounted to 8% of Ontario's generation capacity. 2004 Report of the
ECSTF, Exhibit CDA-59, p. 23.
559 Canada's first written submission (DS426), para. 70; response to Panel question No. 1(g) (second
set); and Government of Ontario, Action Plan to Lower Your Hydro Bill, ("Action Plan to Lower Your Hydro
Bill"), Exhibit CDA-96.
560 Ontario's Long-Term Energy Plan, Exhibit CDA-6, p. 6.
561 Canada's response to Panel question No. 1(g) (second set).
562 Japan's first written submission, para. 25.
563 The Electricity Conservation and Supply Task Force was established in June 2003 and charged with
developing an action plan to address Ontario's need for an affordable, reliable and environmentally acceptable
power supply over the period to 2020. The ECSTF "met thirty times and had detailed discussions with over 90
individuals and organizations representing all sectors of society". 2004 Report of the ECSTF, Exhibit CDA-59,
pp. 1-2.
564 2004 Report of the ECSTF, Exhibit CDA-59, p. 84.
565 2004 Report of the ECSTF, Exhibit CDA-59, p. 84.
566 2004 Report of the ECSTF, Exhibit CDA-59, p. 84.
567 2004 Report of the ECSTF, Exhibit CDA-59, p. 84.
568 2004 Report of the ECSTF, Exhibit CDA-59, p. 84.

7.289 Thus, it appears that in addition to the price vol atility problems associated with the inherent
attributes of competitive wholesale electricity markets
569, a combination of other factors shaping the
interaction of supply and demand for electricity in Ontario affected the operation of the competitive
wholesale market that existed between May and No vember 2002, creating critical limits on what it
could achieve.
7.290 According to Canada, the 2002 experience de monstrates that a competitive wholesale
electricity market "would not be sufficient to en courage the construction of new generation facilities
able to provide the additional long-term supply needed by Ontario residents" 570. This is consistent
with one of the main findings of the ECSTF, which concluded that "the market approach adopted in
the late 1990s needs substantial e nhancement if it is to deliver the new generation and conservation
Ontario needs, within the timeframes we need them"571. In this latter regard, the ECSTF projected that
in the absence of new capacity or demand reduction measures, there would be a supply shortfall in
Ontario of 5000-7,000 MW by 2 007 and approximately 25,000 MW by 2020. The ECSTF's projected
supply and demand conditions are represented in the following table572.

Diagram 5: Existing Generation vs. Peak Demand

7.291 After having "seriously debated" "market solu tions and measures to demonstrate commitment
to those solutions (such as a willingness to allo w consumers to face whatever prices the market
dictates and the sale of OPG's output to private traders and wholesalers)", the ECSTF opined that such
a path "provides no assurance that the needed supply will be in place to replace Ontario's coal fired

569 See discussion above at paras. 7.279-7.284. The Hogan Report explains that "[c]ost overruns in
Ontario Hydro's nuclear construction program and the need to replace or refurbish much of the Province's aging
electricity infrastructure provided the impetus for reform and restructuring", suggesting that supply conditions
were already tight at the time that the market opened in May 2002. Hogan Report, Exhibit CDA-2, p. 19.
570 Canada's first written submission, para. 27.
571 2004 Report of the ECSTF, Exhibit CDA-59, p. (i).
572 2004 Report of the ECSTF, Exhibit CDA-59, Figure 1A, p. 1.

generation in 2007 or to ensure an early start to the process of developing effective supply and
demand options to rehabilitate or replace aging nucl ear plant. It does not provide the stable and
predictable prices Ontario consumers demand … [and ] does not ensure that Ontario will have the
diverse power mix we believe Ontario needs if it s power prices are to remain competitive with
neighbouring markets"
573. The ECSTF concluded that "on balance, … relying on market signals alone
is simply too risky an approach to take, given the potential consequences of failing to achieve the
needed early investments in new supply and conservation" 574. Thus, the ECSTF recommended that
there should be "less reliance on the spot market as a signal for new investment"575.
7.292 In our view, Ontario's 2002 market opening expe rience confirms what is suggested in the
Hogan Report, namely, that competitive wholesale electricity markets will only rarely attract
sufficient investment in the generation capacity need ed to secure a reliable supply of electricity. The
evidence before us indicates that this universal objective of all electricity systems could not have been
achieved in Ontario in 2002 solely on the basis of the operation of a competitive wholesale electricity
market.
The IESO-administered wholesale electricity market
7.293 Japan asserts that the current IESO-administered wholesale electricity market is a competitive
wholesale electricity market. Japan argues that normal market forces, including supply and demand,
and the cost of production, come together in this market to set wholesale electricity prices (i.e. the
HOEP)576. According to Japan, these pric es serve "not only as signals for when electricity should be
dispatched, but also as signals for when electric ity should be consumed, ju st as market prices do" 577.
Japan observes that the IESO Mark et Rules describe the objective of the IESO-administered markets
as "to promote an efficient, competitive and reliable market for the wholesale and purchase of
electricity and ancillary services in Ontario" 578. Moreover, Japan notes that the IESO itself has
described the market it administers as a "compe titive wholesale market", where "wholesale prices are
based on supply and demand, and reflect the cost of producing electricity"579.
7.294 Although initially sharing many of Japan's asser tions about the "competitive" nature of the
IESO-administered wholesale electricity market 580, the European Union subsequently agreed with the
contention that the IESO market mechanism "may not be" the "classical" competitive market where
supply and demand meet 581. Indeed, according to the European Union, "there may not be many
'classical' markets in many jurisdictions with respect to electricity or other products"582.

573 2004 Report of the ECSTF, Exhibit CDA-59, pp. 64-65. At the time of writing the 2004 Report of
the ECSTF, the Government of Ontario had indicated that it would close down coal-fired facilities by 2007.
Subsequently, it was decided that the last coal-fired facility would complete operations by end of 2014.
574 2004 Report of the ECSTF, Exhibit CDA-59, p. 4.
575 2004 Report of the ECSTF, Exhibit CDA-59, p. (iii).
576 Japan's first written submission, paras. 79-81 and 2 19; and response to Panel question No. 45 (first
set).
577 Japan's comments on Canada's response to Panel question No. 43 (second set).
578 Japan's comments on Canada's response to Panel question No. 43 (second set), referring to IESO,
Market Rules for the Ontario Electricity Market, (" IESO Market Rules"), Exhibit CDA-106, Chapter 1,
Section 3.1.1.
579 Japan's first written submission, para. 79, referring to Quick Takes: Electricity Pricing, Exhibit JPN-
3, p. 1.
580 e.g. European Union's first written submission, paras. 70-73.
581 However, the European Union nevertheless considers that "the IESO market mechanism is a market
where demand, represented by the relevant competent author ities in Ontario, meets with supply (i.e., electricity

7.295 We note that while Japan has argued that the IESO-administered wholesale market is
competitive, it has provided the following description of how the HOEP is actually determined:
Dispatchable generators must submit pr ice/quantity 'offers' for every five minute
interval. Although many dispatchable generators will in fact receive regulated or
contracted rates for the electricity they sell, they must nonetheless submit offers to the
IESO to indicate the quantity they are willing to supply in a given five minute
interval, and in doing so they must strategize about what price to offer such that their
quantity will actually be selected by the IESO . Thus, the price offers by dispatchable
generators serve as a dispatch signal – i.e., a mechanism for the IESO to select
electricity supply – and not as the rate th at these generators actually receive.
Generators for which it would be very costly to shut down, such as nuclear facilities,
would likely offer a price at or near zero so they can always operate, while other
generators would likely offer prices that cover their marginal costs of production583.
7.296 Japan's description highlights tw o important points, the first being that most generators
participating in the IESO-administered wholesale ma rket do not receive the HOEP. In fact, facilities
accounting for 92% of Ontario's 2010 generation capacity do not receive the HOEP, but a higher price
established by the OEB (50% of capacity) or under contracts with the OPA or the OEFC (42% of
capacity)584. The only generators that receive the HOEP alone are the OPG's unregulated
hydroelectric facilities and two of its coal-fired generation facilities 585. Canada has explained that
these facilities are relatively old (most have opera ted for over 60 years) with largely depreciated
capital costs 586. In addition, the coal-fired facilities will be decommissioned by the end of 2014 587.
Because of this, the Government of Ontario h as decided that these unregulated facilities should
receive the HOEP instead of a price "guided by th e principle of cost recovery and a margin of
return"588.
7.297 The second telling feature of the IESO-administere d wholesale market that is apparent from
Japan's description follows from the first, namely, that the primar y motivation behind a generator's
price offers is to be selected to dispatch electricity, and not to cover its marginal costs of production.
Canada confirms that this is ex actly what happens, explaining that OPG's regulated hydroelectric and
nuclear facilities (which account for the majority of generation in Ontario) make offers into the IESO
market clearing mechanism that are "so low (often negative rates) that the IESO must accept" them589.
According to Canada, the OPG makes such low pri ce offers "to ensure its electricity is accepted",
knowing that they will not affect its revenue, which depends upon the regulated price that is set by the
OEB. Similarly, for one category of contract gene rators, the NUGs, Hogan points out that "[b]ecause
the contract prices are above both marginal cost and market clearing price during off-peak periods
NUGs have incentives to produ ce uneconomic power off-peak" 590. Generally, costs of production are
also not a consideration for OPG's "unregulated asset s" receiving the HOEP, as this price, as a matter

generators); and it is the market mechanism chosen by the competent authorities in Ontario to regulate the
exchanges of electricity". European Union's second written submission, para. 91.
582 European Union's second written submission, para. 91.
583 Japan's first written submission, Appendix II, para. 8. (footnote omitted, underline added)
584 Canada's first written submission, para. 37. See also above, paras. 7.27-7.31.
585 Canada's first written submission, para. 38.
586 Professor Hogan describes these suppliers as "a small subset of old or infrequently operating
generating facilities that have fully recovered their sunk costs, and thus, only need to meet their variable costs to
be profitable". Hogan Report, Exhibit CDA-2, p. 10.
587 Canada's response to Panel question No. 41 (second set).
588 Canada's response to Panel question No. 26 (first set).
589 Canada's response to Panel question No. 41 (second set).
590 Hogan Report, Exhibit CDA-2, p. 30.

of policy, has been deemed to be sufficient for these older, largely depreciated assets, regardless of
whether this enables them to cover marginal costs.
7.298 It follows from the above that the price offers attached to a generator's supply bids in the
IESO-administered wholesale market are not motiva ted by the need to cover marginal costs of
production (as would typically be the case in a competitive wholesale electricity market such as that
which existed in Ontario in 2002
591), but rather by the need for each generator to be chosen to supply
electricity into the Ontario grid in order to receive its contracted or regulated prices. Thus, the IESO-
administered wholesale market does not arrive at its equilibrium price (the HOEP) through forces of
supply and demand that are unaffected by the policies of the Government of Ontario. To the extent
that the Government of Ontario (through the OEB, the OPA and OEFC) ensures that 92% of Ontario's
generation capacity is remunerate d at prices above the HOEP, and instructs the OPG's unregulated
assets to accept the HOEP irrespective of production cost s, it is clear to us that the HOEP is not a
market outcome that may be used for the purpose of conducting the present benefit analysis. This is
because, in many important respects, the equilibrium level of the HOEP is a direct consequence of the
electricity pricing policy and supply-mix decisions of the Government of Ontario. Thus, as Canada
and Professor Hogan emphasize, the IESO-administered wholesale market clearing mechanism is
perhaps best characterized as a tool for the IESO to make the dispat ch decisions needed to balance
physical supply and demand for electricity
592.
7.299 The European Union submits that "one possible means to assess whether the HOEP
represents the price of electricity in Ontario under ma rket conditions" is to compare it with the prices
of Ontario electricity imports and exports 593. After reviewing the average import and export prices of
electricity to and from neighbouring Provinces (including Manitoba) and the United States (Michigan,
Minnesota and New York) over the past three y ears, the European Union concludes that the
"similarity between the HOEP and th e import and export prices is … revealing of the fact that the
HOEP faithfully reflects the price practiced in On tario and neighbouring jurisdictions under market
conditions"594. The European Union considers this to be a valid conclusion because "neither the
Canadian provinces nor the US States are submitted to overarching governmental regulations"
implying that "these entities trade electricity en tirely based on their demand and their available
supply"
595. We have a number of problems with the inferences the European Union draws from the
data.
7.300 First, we recall that the HOEP does not represen t an equilibrium price that is set in a
competitive wholesale market of a kind that may be used for the purpose of conducting the present
benefit analysis. Rather, the HOEP is a price that is heavily influenced by the electricity pricing policy
and supply-mix decisions and regula tions of the Government of Ontario. Thus, to the extent that
export and import prices reflect or are "tied to" the HOEP, they cannot be considered to reflect prices
established in a competitive wholesale electricity market.
7.301 Secondly, if, as Professor Hogan suggests, exporters of electricity will supply to Ontario
when the difference between wholesale prices in differ ent jurisdictions is "large enough" to warrant

591 In this regard, Canada emphasizes that the IE SO-administered wholesale market is qualitatively
different to the wholesale market op erated by the IMO during the 2002 ma rket opening experience because in
the case of the latter, electricity generators competed on the basis of both price and volume offers, whereas there
is no such competition between generators operating today. Canada's responses to Panel questions Nos. 41-43
(second set).
592 Canada's first written submission (DS426), para. 71; opening statement at the first meeting of the
Panel, para. 83; and Hogan Report, Exhibit CDA-2, pp. 37-41.
593 European Union's second written submission, para. 92.
594 European Union's second written submission, para. 95.
595 European Union's second written submission, para. 92.

arbitrage between the two systems, it follows that the price level in an exporter's domestic wholesale
market will significantly influence the price of exports. However, apart from asserting that the
relevant exporters "trade electricity entirely based on their demand and their available supply", the
European Union has advanced no evidence to dem onstrate that the domestic wholesale electricity
markets in Manitoba, Michigan, Minnesota a nd New York are themselves based on "market
conditions" that are not significantly distorted by gove rnment intervention. In this light, the fact that
the HOEP is similar to export and import prices c ould simply reflect the existence of less than
competitive wholesale markets in the neighbouring jurisdictions. Moreover, as explained in more
detail in the section that follows, the wholesale elec tricity market in New York is not the only source
of remuneration that keeps generators participating in the New York electricity system
596.
7.302 The above features of electricity import and expor t exchanges suggest to us that the price of
electricity that is traded between Ontario and its neighbouring jurisdictions does not, as the European
Union argues, verify that the HOEP "represents th e price of electricity in Ontario under market
conditions".
Wholesale electricity markets outside of Ontario
7.303 The complainants argue that the price of elect ricity in four allegedly competitive wholesale
electricity markets operating outside of Ontario c ould be used as a proxy for the wholesale market
price of electricity in Ontario. In particular, the complainants refer to the prices established in the
wholesale electricity markets of Alberta, New York State, the State of New England and the Mid-
Atlantic region of the United States (the PJM Interconnection). To subs tantiate the alleged
competitive nature of these markets, Jap an, supported by the European Union
597, highlights inter alia
the following statements made in publications from each of the four markets598:
Alberta's power market is unique in Canada. It's wholesale and retail markets are
open to competition … Investment in gene ration is at the developers' risk … 599.
NYISO (and more generally, New York's competitive wholesale market) has
performed extremely well on many if not most of the outcomes to which the state's
restructuring of its electric industry asp ired. In many respects, NYISO stands as a
model of a well ‐functioning electric market that relies extensively on competitive
markets to provide benefits to the state's electricity consumers600.
To assess the competitiveness of the electric energy markets, the [Internal Market
Monitor of ISO New England] examined two types of measures of market
competitiveness: structural measures, which analyze the concentration of generation-
resource ownership in the New England markets; and price-based measures, which
compare wholesale market prices to the estim ated cost of providing electric energy.
The results of the concentration analyses show that the market is structurally
competitive … Market results show that elect ric energy prices reflect supplier costs to

596 See discussion below paras. 7.304-7.305.
597 e.g. European Union's, response to Panel question No. 27 (second set).
598 Japan's response to Panel question No. 31 (second set). See also Japan's response to Panel question
No. 7 (first set).
599 Independent Power Producers Society of Alberta, Alberta's Power Market, ("Alberta's Power
Market"), Exhibit JPN-208.
600 The New York Independent System Operator: A Ten-Year Review, Analysis Group, 12 April 2010,
("New York Independent System Operator"), Exhibit JPN-209, p. 3.

produce electric energy (i.e., largely fuel prices), which is consistent with the finding
that the market is competitive
601.
The overall market results support the conc lusion that prices in PJM are set, on
average, by marginal units operating at, or close to, their marginal costs. This is
evidence of competitive behavior and competitive market outcomes602.
7.304 Although Canada does not appear to specifically challenge the complainants' allegations
concerning the competitive nature of the above-men tioned wholesale markets, we find it instructive
for the purpose of evaluating the nature of th e wholesale markets that exist in New York,
New England and the PJM, to read in the Hogan Report that because of the "missing money"
problem:
[A]lternative mechanisms to wholesale spot markets have been required to provide
incentives for long-term investment to meet forecasted demand. In some regions,
such as Ontario, centralized decision make rs employ purchased power contracts to
finance new investment. Many organized ma rkets in the U.S. have taken a similar
path, developing parallel capacity markets and requiring ratepayers to pay additional
capacity charges for their share of required levels of capacity, to meet resource
adequacy requirements and provide the additional compensation to generators
603.
7.305 The Hogan Report identifies New York, New E ngland and PJM as examples of regions that
"operate capacity markets to supplement spot market revenues for electricity and ancillary
services"604. In other words, the wholesale spot mark et prices for electricity in New York, New
England and PJM, are not the only sources of revenue for generators supplying electricity into their
respective systems. Generators in these systems also receive "capacity" payments. Thus, not unlike
Ontario's market opening experience in 2002, the fact that generators in New York, New England and
PJM operate on the basis of more than just the revenues obtained from the wholesale spot market for
electricity evidences the difficulties that competitive wholesale markets have to, on their own, attract
sufficient investment in the generation capacity n eeded to secure a reliable system of electricity
supply.
7.306 Turning to the complainants' refe rence to the Province of Alberta, we observe that the fact
that a "market" approach "has ha d some success in Alberta" was no ted by the ECSTF. However, in
the light of inter alia the conditions of supply and demand fo recast to exist in Ontario between 2003
and 2020605, the ECSTF concluded that following the same approach in Ontario involved risks that
"were simply too great"606. As already noted, the ECSTF found that "on balance … relying on market
signals alone is simply too risky an approach to take, given the potential consequences of failing to

601 ISO New England, 2010 Annual Markets Report, 3 June 2011, ("New England 2010 Annual
Markets Report"), Exhibit JPN-210, pp. 4-6 and 56-64.
602 Monitoring Analytics, 2010 State of the Market Report for PJM, 10 March 2011, ("2010 State of the
Market Report for the PJM Interconnection"), Exhibit JPN-211, pp. 30-32.
603 Hogan Report, Exhibit CDA-2, p. 18.
604 Hogan Report, Exhibit CDA-2, fn. 21.
605 The Electricity Conservation and Supply Task Force was established in June 2003 and was charged
with "developing an action plan to address the province's need for an af fordable, reliable and environmentally
acceptable power supply over the period to 2020". 2004 Report of the ECSTF, Exhibit CDA-59, p. 1.
606 2004 Report of the ECSTF, Exhibit CDA-59, p. 64.

achieve the needed early investments in new supply and conservation"
607, and recommended that there
should be "less reliance on the spot market as a signal for new investment"608.
7.307 Although the ECSTF did not explicitly identify th e specific differences between Alberta and
Ontario that led it to draw the above conclusions, the contents of its Report suggest that they must, at
least in part, have had to do with the conditions of supply and demand in the two Provinces. Thus,
while there is no evidence before us to doubt th e contention that Alberta operates a competitive
wholesale electricity market, it is perhaps best characte rized as one of the exceptions alluded to in the
Hogan Report. Most importantly, however, th e ECSTF charged with devising a plan for Ontario's
electricity future up to 2020 concluded, in 2004, that it would not be possible to introduce a
competitive wholesale market in Ontario that guaranteed the same degree of success as Alberta.
Conclusions concerning the wholesale electricity market as the relevant focus of the benefit analysis
7.308 We recall that Article 14(d) of the SCM Agre ement provides useful guidance for determining
whether "financial contribution[s]" in the form of "government purchases [of] goods" confer a benefit
for the purpose of claims made under Part III of the SCM Agreement. According to this guidance, one
way the challenged measures may be found to conf er a benefit is by demonstrating that the
remuneration obtained by FIT generators opera ting on the basis of windpower and solar PV
technology under the FIT Programme is "more than adequate" compared with the remuneration the
same generators would receive on the relevant "market" for electricity in Ontario, in the light of the
"prevailing market conditions". Throughout these pr oceedings, the complainants' principal argument
has been that the benchmark for "adequate re muneration" should be found in the allegedly
competitive wholesale electricity market that exists in Ontario or four out-o f-Province jurisdictions.
However, for the reasons we have explained ab ove, the evidence before us indicates that the
wholesale electricity market that currently exists in Ontario is not a market where there is effective
competition. Rather, Ontario's wholesale electricity market is perhaps better characterized as a part of
an electricity system that is defined in almost all aspects by the Government of Ontario's policy
decisions and regulations pertaining to the supply mix needed to ensure that Ontario has a safe,
reliable and long-term sustainable supply of electricity, as well as how the costs of that system will be
recuperated. We have little doubt that the HOEP re sults from the operation of forces of supply and
demand that are significantly affected by govern ment intervention in a way that renders it an
inappropriate benchmark to conduct the present benefit analysis. In the light of the benefit standard
that has thus far been applied in WTO disputes
609, we find that the HOEP and all of the HOEP-
derivatives that the complainants have advanced 610, cannot serve as appropria te benchmarks for the
purpose of the benefit analysis.
7.309 Importantly, the complainants have not convi nced us of the premise underlying their two
main lines of benefit arguments, namely, that in the absence of the FIT Programme, the FIT
generators would be faced with having to operate in a competitive wholesale electricity market. The
evidence before us indicates that competitive whol esale electricity markets, although a theoretical
possibility, will only rarely operate in a way that remunerates the mix of generators needed to secure a
reliable electricity system with enough re venue to cover their all-in costs, let alone a system that
pursues human health and environmental objectives through the inclusion of facilities using solar PV
and wind technologies into the supply-mix. In the specific context of Ontario, the 2002 market
opening experience illustrates this point. Althou gh intended to operate as a "classical" competitive

607 2004 Report of the ECSTF, Exhibit CDA-59, p. 4.
608 2004 Report of the ECSTF, Exhibit CDA-59, p. (iii).
609 See above at paras. 7.271-7.275.
610 Specifically, the weighted average "wholesale rate" during 2010 for generators other than FIT and
RESOP generators, and the price paid by retail consumers under the Regulated Price Plan in 2010.

market where generators would sell electricity at spot prices equal to marginal costs, the conditions of
supply and demand that existed at that time made it impossible for the market to attract the investment
in generation capacity needed to secure a reliable sy stem of electricity supply. By saying that it was
because "the established market structure did not invite the sufficient entry of new generators … [that]
the Government of Ontario enacted the Electricity Restructuring Act, 2004, amending the Electricity
Act, 1998"
611, Japan appears to recognize the limits of the competitive market experience in Ontario.
7.310 The complainants have referred to examples of what they consider to be competitive
wholesale markets existing outside of Ontario. However, as we have explained, the evidence before us
suggests that because of, at least in part, the par ticular conditions of suppl y and demand that were
forecast in 2003 for Ontario up to 2020, the ECSTF found that the Alberta experience could not be
reproduced in Ontario with the same degree of success. Given the significant volume of generating
capacity (around 43%) that it is projected will need to be renewed, replaced or added to Ontario's
electricity system by 2030
612, and in the light of the limitations that are inherent to competitive
wholesale electricity markets, the complainants' benefit arguments fail to convince us that the
recommendations of the ECSTF do not also hold true today. With respect to the three examples of
allegedly competitive wholesale markets in the United States, it appears from the Hogan Report that
these markets do not, in fact, provide participating generators with all of the revenues they need to be
present on the market. As Professor Hogan explains, the New York, PJM and New England electricity
systems have developed "parallel capacity markets an d [require] ratepayers to pay additional capacity
charges for their share of required levels of cap acity, to meet resource adequacy requirements and
provide the additional compensation to generators" 613. It follows that the allegedly competitive
New York, PJM and New England wholesale electricity markets do not represent examples of
competitive wholesale markets that are capable, on their own , of attracting sufficient investment in
generation capacity to secure a reliable system of electricity supply.
7.311 We note that all parties to these proceedings ag ree that FIT generators using solar PV and
windpower technology would be unable to conduct vi able operations on the basis of the equilibrium
prices that could be achieved in a competitive wholesale electricity market
614. However, Canada has
also suggested that there would be unacceptable risks to the reliability of Ontario's electricity system
if the structure of Ontario's supply-mix were left to be settled by competitive forces of supply and
demand. We tend to agree. Given the technical co mplexities of electricity systems, the inherent
limitations of competitive wholesale electricity market s, and recalling, in particular, Ontario's failed
2002 market-opening experience, as well as the cu rrent and projected conditions of supply and
demand in Ontario, we are not convinced that a reliable supply of electricity could be secured at
present in Ontario solely through the operation of a competitive wholesale electricity market.
7.312 In our view, the application of a competitive w holesale market standard in the circumstances
of the present disputes would not only insufficiently respond to the considerable challenges faced by

611 Japan's first written submission, para. 25.
612 Ontario's Long-Term Energy Plan reveals that 15,000 MW of Ontario's existing 35,000 MW of
generation capacity will need to be renewed, replaced or added by 2030. This is due to the fact that Ontario's
nuclear facilities will be temporarily shut down for maintenance between 2010 and 2020, and because coal-fired
facilities will be eliminated by the end of 2014. Canada's first written submission (DS412), para. 34, referring to
Ontario's Long-Term Energy Plan, Exhibit CDA-6, pp. 10 and 23. On this basis, it would appear that the
potential for the same tight supply cond itions that existed a decad e ago, which at least in part informed the
ECSTF recommendations, continues today.
613 Hogan Report, Exhibit CDA-2, p. 18.
614 Japan's second written submission, paras. 3-7; opening statement at the second meeting of the Panel,
paras. 10-13; comments on Canada's responses to Panel questions Nos. 1 and 42 (second set); European Union's
opening statement at the second meeting of the Panel, para. 18; and Canada's first written submission (DS412),
paras. 27 and 39.

electricity systems that are caused by the specific properties of electricity, but it would also overlook
the particular situation in Ontario. Importantly , it would ignore the evidence indicating that the
prevailing conditions of supply and demand in Ontario suggest that a competitive wholesale
electricity market would fail to attract the degree of investment in generating capacity needed to
secure a reliable supply of electricity, and that, at present, this goal can only be achieved by means of
government intervention in what would otherwise be unacceptable competitive market outcomes. In
these circumstances, and given the critical importance of electricity to all facets of modern life, we
cannot accept that it would be appropriate to dete rmine whether the FIT Programme and the FIT and
microFIT Contracts confer a benefit within the m eaning of Article 1.1(b) of the SCM Agreement by
comparing the terms and conditions of participation in the FIT Programme with those that would be
available to generators participating in a wholesa le electricity market where there is effective
competition
615.
7.313 Thus, for all of the foregoing reasons, we conclude that:
(a) the HOEP is a price set through the interaction of supply and demand forces that in
many critical aspects are significantly influenced by the supply-mix and pricing
policy decisions and regulations of the Gove rnment of Ontario, and therefore, the
HOEP and all of the related HOEP-derivativ es the complainants have submitted as
appropriate benchmarks for the purpose of the benefit analysis cannot be accepted;
(b) the complainants have failed to convin ce us that, in the absence of the FIT
Programme, the FIT generators would be faced with having to operate in a
competitive wholesale electricity market because: (i) the economics of competitive
wholesale electricity markets suggest that they will only rarely attract the degree of
investment in the generation capacity needed to secure a reliable electricity system;
and (ii) the weight of the evidence before us indicates that, at present, a competitive
wholesale electricity market would fail to achieve this outcome in Ontario; and
(c) in the light of our conclusions in (a) and (b), and given the critical importance of
electricity to all facets of modern life, we find that the question whether the
challenged measures confer a benefit within the meaning of Article 1.1(b) of the
SCM Agreement cannot be resolved by a pplying a benchmark that is derived from
the conditions for purchasing electricity in a competitive wholesale electricity market.
(iv) Alternatives to the wholesale market for elect ricity as the relevant focus of the benefit
analysis
7.314 Both Japan and the European Union have advan ced a number of alternative benchmarks to
the competitive wholesale electricity market which they consider may be used to demonstrate that the
challenged measures confer a benefit within the meaning of Article 1.1(b) of the SCM Agreement.
7.315 First, Japan and European Union both argue that even if the HOEP is not the price established
in a competitive wholesale electricity market, it is nevertheless the actual price that would be received
by the FIT generators but for the existence of the FIT Programme
616, and for this reason, it should be
used as the appropriate benchmark for the purpose of the benefit analysis. Although the complainants
have not explained this argument in great detail, we understand that it is pr emised on a counterfactual
where, in the absence of the FIT and microFIT Cont racts, the non-FIT suppliers currently operating in

615 See further in this regard at para. 7.320.
616 The European Union appears to makes this argument by characterizing the HOEP as the price that is
formed in the "nominal" wholesale electricity market. European Union's second written submission, para. 88.

Ontario would continue to operate in the same wa y, thereby maintaining the HOEP at current levels.
In our view, this could onl y happen if the existing suppliers would continue to receive the (generally)
above-HOEP prices that have been contracted with the OPA and the OEFC or regulated by the OEB.
In other words, in the counterfactual posited by th e complainants the Government of Ontario would
continue to play the role of contracting and regulating electricity wholesale electricity prices
617. In this
light, it is difficult for us to accept that the only option, in the absence of the FIT Programme, for a
generator using solar PV and wi ndpower technology to enter the market would be to accept the
HOEP. Rather, as Canada suggests, the most probabl e course of action for such new entrants would
be to agree to a price negotiated with the Government of Ontario.
7.316 The European Union also argues that an altern ative to, or a proxy for, a benchmark found in
the competitive wholesale electricity market could be the prices of imports and exports of electricity
into and out of Ontario 618. We respectfully disagree. As we have explained above, to the extent that
such prices reflect or are "tied to" the HOEP, they cannot be considered to be competitive market
prices, and therefore cannot be used for the purpose of conducting the present benefit analysis.
7.317 According to Japan, another way of determin ing whether the challenged measures confer a
"benefit" could be by comparing the FIT and microF IT Contract Prices with the prices offered under
the Regulated Price Plan ("RPP"). Although at a di fferent level of trade to the wholesale market
benchmarks it has advanced, Japan argues that RPP prices may nevertheless be taken into account as
possible benchmarks because "no generator of electricity in Ontario should expect to receive a rate in
excess of the price paid by retail consumers in their commodity portion of the bill"
619. Japan argues
that RPP prices represent the "ceiling" for the amount that Ontario consumers are willing to pay for
electricity620, an assertion that Japan submits is confirmed by the evidence it has advanced of the
prices set in two private retail contracts offered in a recent promotion in Ontario 621. Thus, Japan
appears to argue that because the (wholesale level) Contract Prices offered under the FIT Programme
are greater than RPP prices paid at the retail level, the challenged measures must confer a benefit. We
are not able to share Japan's point of view. As we have already explained, RPP prices are regulated
prices that are inherently linked to the HOEP, wh ich we have found cannot serve as an appropriate
benchmark for determining the existence of "benef it". In our view, in order to be used for the
argument that Japan is attempting to make, the reta il level prices that Japan relies upon would need to
be determined in a competitive marketplace. T hus, even if we were to accept that a retail level
electricity price may serve as an appropriate be nchmark against which to determine whether the
wholesale level prices paid to FIT generators confer a bene fit within the meaning of Article 1.1(b) of
the SCM Agreement, the relevant retail level prices could not be those set under the RPP because, in
the same way as the HOEP, the RPP is significantly influenced by the supply-mix and pricing policy
decisions and regulations of the Government of Ontario. Given these considerations, we cannot accept
Japan's argument that RPP prices may serve as appropriate benchmarks for the benefit analysis.
7.318 Finally, we note that throughout these proceedi ngs Canada has argued that the relevant
"market" for the purpose of the benefit analysis sh ould be the market for electricity produced from
solar PV and windpower technology, reflecting the fact that it is electricity generated from renewable
sources of energy that is purchased by the Go vernment of Ontario under the FIT Programme.

617 A counterfactual where the Government of Ontario is not present at all would imply the existence of
a competitive wholesale market, which we have already re jected as being the approp riate focus of the benefit
analysis.
618 European Union's second written submission, para. 95.
619 Japan's first written submission, para. 223.
620 Japan's opening statement at the second meeting of the Panel, para. 19.
621 Japan's response to Panel question No. 28 (second set), referring to offers made by "Canada
Energy", Canada Energy website, ("Canada Energy"), Exhibit JPN-229; and "MyRate Energy", MyRate Energy
website, ("MyRate Energy"), Exhibit JPN-230.

According to the complainants, however, there can be only one relevant market for the purpose of the
benefit analysis, namely, the market for electric ity that is generated from all sources of energy,
including solar and wind energy. This is because multiple distinct electricity markets based on
differences in generation technologies do not exist in Ontario. On this particular point, we agree with
the complainants. As both Japan and the European Union have convincingly argued, at present,
consumers of electricity in Ontario, whose dema nd instantaneously determines the purchases made at
the wholesale level, do not distinguish electricity on the basis of different generation technologies,
either by way of price or usage
622. Moreover, there are no arguments before us to suggest that the
physical properties of electricity change dependi ng upon how it is generated. There is therefore no
basis to accept that a separate wholesale mark et for electricity generated from solar PV and
windpower technologies would be the appropriate fo cus of the benefit analysis in the present
disputes623.
7.319 Thus, we find that none of the alternatives that have been advanced by the complainants (or
Canada) may be used as appropriate benchmarks against which to measure whether the FIT
Programme and the FIT and microFIT Contracts confer a benefit within the meaning of Article 1.1(b)
of the SCM Agreement. In particular, we have determined that the HOEP would not be the only
option available to potential generators using so lar PV and windpower technology in the absence of
the FIT Programme. The HOEP cannot therefore be used to test whether the FIT and microFIT
Contract Prices confer a benefit upon FIT Programme generators. The two other alternatives advanced
by the complainants (electricity import and e xport prices, and RPP prices) are both inherently
connected to the HOEP and, thereby, the electricity pricing policy decisions and regulations of the
Government of Ontario. Therefore, these alternativ es also cannot be relied upon to determine whether
the FIT Programme confers a benefit. Finally, we have found that there is no evidence to support the
existence in Ontario of a separate wholesale market fo r electricity that is generated solely from solar
PV and windpower technology. There is therefore no factual basis to support Canada's contention that
the existence of benefit could ha ve been determined in the present disputes by comparing FIT and
microFIT Contract Prices with the prices established in such a market.
(v) Final conclusions and observations on the existence of benefit
7.320 We have carefully reviewed the parties' legal and factual arguments in the light of the legal
standard for determining the exis tence of benefit that has to date been applied in WTO dispute
settlement. In the particular circumstances of thes e disputes, we have conc luded that determining
whether the challenged measures confer a benef it on the basis of a benchmark derived from a
competitive wholesale electricity market, would mean that the FIT and microFIT Contracts could be
legally characterized as subsidies by means of a comp arison with a market standard that has not been
demonstrated to actually exist nor one that coul d be reasonably achieved in Ontario - a market
standard that the complainants have not contested will only rarely, if at all, attract sufficient
investment in generation capacity to secure a reliab le system of electricity supply even outside of
Ontario624. In our view, such an outcome would fail to reflect the reality of modern electricity

622 Japan's opening statement at the first meeting of the Panel, para. 31; response to question No. 53
(first set); second written submission, para. 23; commen ts on Canada's response to Panel question No. 41
(second set); European Union's response to Panel qu estion No. 64 (first set); second written submission,
para. 74; and opening statement at the second meeting of the Panel, para. 25.
623 Having rejected Canada's submissions concerning the appropriate approach to determining the
existence of benefit, it is not necessary for us to ev aluate the merits of the European Union's alternative
arguments advanced to demonstrate th at even according to Canada's line of argument, the FIT and microFIT
Contracts amount to financial contributions that confer a benefit upon the FIT generators within the meaning of
Article 1.1(b) of the SCM Agreement.
624 On this point, we note that the general descriptions the complainants have presented of their own
electricity systems confirm that diff ering degrees of government intervention in market outcomes are also a

systems, which by their very nature need to dr aw electricity from a range of diverse generation
technologies that play different roles and have different costs of production and environmental
impacts. As we have emphasized on a number of occasions, it is only in exceptional circumstances
that the generation capacity need ed from all such technologies will be attracted into a wholesale
market operating under the conditions of effec tive competition. Thus, the competitive wholesale
electricity market that is at the centre of the complainants' main submissions cannot be the appropriate
focus of the benefit analysis in these disputes. Fu rthermore, for the reasons we have outlined above,
the alternatives to the wholesale elect ricity market that have been presented to us also cannot stand as
appropriate benchmarks against which to measure whether the challenged measures confer a benefit.
There is therefore no basis to uphold the complainants' benefit arguments.
7.321 In coming to this conclusion, we note that the complainants have asked the Panel not to limit
its analysis to rejecting the benchmarks proposed by the parties, inviting the Panel to "find the
appropriate benchmark to make a finding on the existence or absence of benefit"
625 and "identify the
proper benchmark to complete the benefit analysis" 626. Indeed, according to the European Union, the
Panel is under an obligation to do so 627. We do not share the European Union's conviction. In our
view, there is no authority in WTO law that compels us to review the merits of the complainants'
prohibited subsidy claims on the basis of arguments that they have not themselves advanced. We are
not convinced that the passages the European Union has referred to from the Appellate Body report in
Japan – DRAMS and the panel report in Canada – Aircraft628, stand for the proposition that the Panel
majority in these disputes cannot limit its analysis to rejecting the complainants' benefit arguments.
Moreover, we recall that it has been consistently recognized in WTO dispute settlement practice that
it is for a complaining party to establish a clai med infringement of the covered agreements by
presenting at least a prima facie case of violation on the basis of relevant legal and factual
arguments629. Thus, while a panel has a duty to engage with and explore such arguments and make
objective findings upon their merits , a panel is not entitled to make a prima facie case for a party that
bears the burden of making it 630. With these principles in mind, and in the light of the complainants'
explicit requests for the Panel to expl ain its own position with respect to benefit were it to reject the
substantial and diverse range of submissions they themselves have made on the issue, we set out in
the following paragraphs our own observations on one approach to the question of benefit that we
believe could have been validly pursued in these disputes.
7.322 Because we have found that the very existence of a reliable electricity supply in Ontario at
present requires comprehensive government interventi on in the wholesale electricity market, one way
we believe it is possible to evaluate whether the challenged measures confer a benefit, that at the same
time maintains a market-based discipline, is by evaluating the commercial nature of the FIT and
microFIT Contracts against the actions of privat e purchasers of electricity in a wholesale market
where the conditions of supply and demand mirror t hose that currently exist in Ontario. For this

feature of wholesale electricity mark ets in Japan and the European Union. For instance, the European Union
explains that "some EU Member States have taken steps to make further use of nuclear power, whereas others
prefer not to rely on (or to phase out) that particular source of energy". European Union's response to Panel
question No. 27 (second set). Similarly, Japan states that "only GEUs may supply electricity to small-scale
users, and they must do so at rates regulated by the Government. … Wholesale rates for sales of electricity to
GEUs may be subject to regulation by the Government". Japan's response to Panel question No. 27 (second set).
625 European Union's closing statement at the second meeting of the Panel, para. 19.
626 Japan's closing oral statement at the second meeting of the Panel, para. 7.
627 European Union's closing statement at the second meeting of the Panel, para. 19.
628 In particular, the European Union refers to Appellate Body Report, Japan – DRAMs, para. 174; and
629 Appellate Body Report, US – Gambling , para. 282; Appellate Body Report, US – Wool Shirts and
Blouses, p. 14, DSR 1997:I, 323, at 335.
630 See, for example, Appellate Body Report, Japan – Agricultural Products II, para. 129.

purpose, we believe it is important to recall tha t: (i) the Government of Ontario has decided to
eliminate coal-fired electricity plants by the end of 2014; (ii) that because of this, and due to the
scheduled maintenance of Ontario's nuclear fac ilities between now and 2020, approximately 43% of
Ontario's generation capacity will need to be rene wed, replaced or added to Ontario's electricity
system by 2030
631; and (iii) that the Government of Ontario has decided that at least part of the
additional generating capacity needed to address fu ture needs up to 2030 must come from renewable
sources of energy, including small and large-s cale projects using solar PV and windpower
technologies632. Thus, one way to determine whether the ch allenged measures confer a benefit within
the meaning of Article 1.1(b) of the SCM Agreemen t would involve testing them against the types of
arm's length purchase transactions that would exist in a wholesale electricity market whose broad
parameters are defined by the Government of Ontario 633. In the present set of circumstances, this
could be done by comparing the terms and conditions of the challenged FIT and microFIT Contracts
with the terms and conditions that would be offere d by commercial distributors of electricity acting
under a government-imposed obligation to acquire el ectricity from generators operating solar PV and
windpower plants of a comparable scale to tho se functioning under the FIT Programme. We are
attracted by such an approach because not only does it take into account the complexities of electricity
markets and the particular conditions of supply and demand that currently exist in Ontario, but it also
evaluates the Government of Ontario's actions against a commercial benchmark.
7.323 In our view, any rational distributor charged with having to purchase a volume of electricity
that is not insignificant from generators (incl uding small-scale facilities) using solar PV and
windpower technology would, acting on the basis of commercial considerations, try to negotiate a
supply contract with terms and conditions that ultimately enable it to maximize or optimize the overall
return it makes from trading activities (i.e. buying and selling electricity). In general, this means that a
distributor will endeavour to enter into a supply cont ract with any electricity generator that has the
lowest overall net cost. By the measure of this simple standard 634, we are of the view that one
approach to determining whether the challenged me asures confer a benefit could be to compare the
rate of return obtained by the FIT generators unde r the terms and conditions of the FIT and microFIT
Contracts with the average cost of capital in Cana da for projects having a comparable risk profile in
the same period. In our view, such a comparison would allow for an immediate and clear

631 See above para. 7.310.
632 In particular, as we have already noted, Ontario' s Long-Term Energy Plan en visages that electricity
generated from projects usi ng wind and solar PV technologies (inclu ding small-scale projects) should account
for 11.5% of Ontario's electricity generation capacity by 2030. Ontario's Long-Term Energy Plan, Exhibit CDA-
6, pp. 18 and 28. Although the OPA has observed that small-scale projects will not produce economies of scale,
it also recognizes that su ch projects can "reduce syst em costs by reducing transmission losses". Moreover,
because small-scale projects "can be co nsidered to reduce marginal demand at the times that th ey are running",
they can also be "credited with reducing marginal losses". RESOP, Exhibit CDA-55, p. 20. Small-scale solar PV
and windpower projects are also among the technologies considered to be appropriate for local and dispersed
power generation. See Best Practice Guide: Integrated Resource Planning for Electricity, Exhibit CDA-45,
p. 14.
633 Governments regularly intervene in markets for a variety of reasons including in order to avoid
outcomes that are believed to be socially unacceptable, or to address various market failures. For instance,
governments may decide to limit the availability of certain products because of human health and environmental
concerns, or as the Government of Ontario has done, choose to end the use of a particular production technology
(coal-fired electricity generation) for the same reasons. These kinds of actions are designed to internalize the
social costs (in the case of negative externalities) and be nefits (in the case of positive externalities) of certain
actions in the production and consumption decisions of economic agents. However, where such government
intervention is limited to defining the broad parameters of a market, significant scope will remain for private
actors to operate within those parameters on the basis of commercial considerations.
634 We acknowledge that the considerations shaping a distributor's purchases of electricity under the
defined government direction would no doubt involve a ra nge of other issues. However, in our view, the overall
guiding principle would be that of cost minimization with a view to maximizing or optimizing returns.

determination of whether FIT gene rators are being overcompensated, and thereby subsidized within
the terms of the SCM Agreement.
7.324 The rate of return of a particular project involving the investment of capital is a measure of
the extent to which that project realizes a profit (or loss). In other words, the rate of return represents
the proportion of money earned on a particular proj ect relative to the capital actually invested.
Typically, a rate of return that is at least equa l to the opportunity cost of capital in a given economy
for a project having a comparable risk profile will signal that an investment is an efficient use of
capital. On the other hand, where the rate of return associated with a particular project is below the
opportunity cost of capital, it would not make sense to invest in that project because the funds at issue
could be used more efficiently by being invested elsewhere in the economy. It follows that an
electricity generator in Ontario using solar PV and windpower technology will only be willing to enter
into an electricity supply contract with a distributor if its terms and conditions allow the generator to
achieve a rate of return on the required investment that is at least equal to the opportunity cost of
capital in Canada for comparable projects (i.e., th e average cost of capital in Canada). As the
minimum requirement that would need to be satisfied in order for such a generator to enter into a
supply contract, it is evident that the cost to the dist ributor of entering into a contract that delivers this
desired rate of return must also represent the lowest cost outcome for the distributor. Thus, a
distributor directed to purchase electricity produced by generators (including small-scale facilities)
operating in Ontario on the basis of solar PV and windpower technology will, when acting under
commercial considerations, seek to ensure that th e terms and conditions it agrees to under the supply
contract result in a rate of return for the generator that falls within an acceptable range above or below
the average cost of capital in Canada for projects having a comparable risk profile. It is therefore
possible, in this light, to determine whether the pur chases of electricity effected by the Government of
Ontario under the FIT Programme confer a benefit by examining whether the rates of return
associated with the FIT and microFIT Contracts are significantly above the average cost of capital in
Canada for projects having a comparable risk profile . Were this to be the case, it could be concluded
that the Government of Ontario was overcompensat ing FIT Programme generators, relative to what
they could expect to achieve under supply contracts with private distributors acting under a
government instruction to purchase electricity from solar PV and windpower plants (including small-
scale generators) on the basis of commercial consider ations, thereby conferri ng a benefit upon such
generators under the terms of the SCM Agreement.
7.325 Canada has disclosed that the rate of return of the FIT Contracts used to develop the FIT
Contract Price Schedule was set in 2009 at "approximately 11%"
635. The evidence rev eals that this
percentage represents an after tax rate of return, implying that the pre-tax rate of return would be
higher636. Canada has not explained why the 11% after tax rate of return was chosen as the appropriate
target for the prices set under the FIT Programme. Moreover, the precise methodology that was used
in the Discounted Cash Flow model applied to estab lish the FIT prices on the basis of the 11% rate of
return is not entirely clear. For in stance, there is no information befo re us about the extent to which
the Discounted Cash Flow model takes account of the premium paid to Aboriginal and Community
Participation projects or the potential revenues that may accrue to the Government of Ontario through
the assignment of Environmental Attributes or from the sale of Future Contract Related Products 637.

635 Canada's responses to Panel questions Nos. 26 (first set) and 12 (second set).
636 Proposed FIT Price Schedule Presentation, Exhi bit CDA-46, slides 28 and 30. The latter slide
reveals that the actual income tax rate used in the OPA's calculations was 30.5%.
637 A general overview of the Discounted Cash Flow model used to establish the FIT Price Schedule is
described in the Proposed FIT Price Schedule Presentation, Exhibit CDA-46. This overview reveals that "[n]o
credit [was] assumed for revenues from [the] federal ecoENERGY program". However, there is no indication
whether the premium paid to Aboriginal and Community Participation projects or the potential revenues from
the assignment of Environmental Attributes or Future Contract Related Products is, or is not, taken into account.

In addition, the European Union questions the valid ity of the 11% rate of return, arguing that it
underestimates the actual rates of return that could be achieved by the most efficient FIT generators
on the basis of the FIT Contract Prices
638.
7.326 Turning to the evidence that is before us with respect to the average cost of capital in Canada
for projects with a risk profile that is comparable to solar PV and windpower FIT projects, we note
that the OEB set the target rate of return on equi ty for Ontario's regulated utilities in 2009 at 9.75%639.
However, this rate was calculated on the basis of an average equity risk premium of 550 basis points
for Ontario's regulated electricity and gas utilities. Thus, the 550 basis points figure is not specific to
Ontario's electricity producing utilities. In this regard , we note that the data used by the OEB to arrive
at the equity risk premium reveals that the equity risk premium for electricity utility projects on their
own could be as high as 871 basis points
640, suggesting that the rate of return on equity for regulated
electricity utilities could be as high as 12.96% 641. It is also important to recall that Ontario's regulated
electricity utilities operate nuclear and hydro-electri c facilities. Given the major technical differences
between the latter types of operations, which it should be recalled are also long-established and
government-controlled, and the solar PV a nd windpower projects operating under the FIT
Programme, we do not think it would be appropriate to accept that the risk premium associated with
Ontario's regulated electricity assets could be auto matically compared with the rate of return
associated with solar PV and windpower projects under the FIT Programme. It appears, therefore, that
the record of these disputes does not contain any appropriate information that can be used to
determine the average cost of capital in Canada fo r projects with a comparable risk profile to the
challenged FIT and microFIT projects during the relevant period.
7.327 Thus, while we believe that a comparison betw een the relevant rates of return of the
challenged FIT and microFIT Contracts with the rele vant average cost of capital in Canada would be
a useful way to determine, on the basis of the be nefit standard we have outlined above, whether the
challenged measures confer a benefit within the mean ing of Article 1.1(b) of the SCM Agreement, a
number of important questions and factual issues would need to be explored and resolved in order for
any such analysis to be undertaken.
4. Overall conclusion with respect to the claims of subsidization
7.328 In the light of our evaluation of the merits of the parties' arguments and the findings that we
have made in Sections VII.C.1 to 3 of these Reports, we conclude that:
(i) the FIT Programme, and the FIT and microFIT Contracts, amount to government
purchases of goods within the meaning of Article 1.1(a)(1)(iii) of the SCM
Agreement; and
(ii) Japan and the European Union have failed to establish that the challenged measures
confer a benefit, within the meaning of Article 1.1(b) of the SCM Agreement.

638 See, e.g. European Union's opening statement at the second meeting of the Panel, para. 26; response
to Panel question 34 (second set); comments on Canada's response to Panel question 12 (second set).
639 OEB Report on the cost of capital for Ontario's regulated utilities, Exhibit CDA-64, p. 37.
640 OEB Report on the cost of capital for Ontario's regulated utilities, Exhibit CDA-64, pp. 38 and 40.
641 The rate of return of 9.75% was set by the OE B on the basis of the forecast long-term Canadian
government bond yield (4.25%) plus the equity risk premium (550 basis points). The 12.96% figure can be
calculated by adding the 4.25% forecast long-term Cana dian government bond yiel d to the 871 basis points
equity risk premium determined by one of the OEB's consultants. OEB Report on the cost of capital for
Ontario's regulated utilities, Exhibit CDA-64, pp. 37 and 40.

VIII. CONCLUSIONS AND RECOMMENDATIONS
8.1 As already noted in the cover page to th ese Reports, our conclusions and recommendations
have been set out separately with respect to each dispute in the following sections.

 Page JPN-139

A. COMPLAINT BY JAPAN (DS412)
1. Conclusions
8.2 In the light of the findings set out in the fore going sections of this Repor t, we conclude that
Japan has established that the "Minimum Required Domestic Content Level" prescribed under the FIT
Programme, and implemented through the individual FIT and microFIT Contracts executed since the
FIT Programme's inception, places Canada in breach of its obligations under Article 2.1 of the
TRIMs Agreement and Article III:4 of the GATT 1994.
8.3 On the other hand, in the light of the findings set out in the foregoing sections of this Report,
we conclude that Japan has failed to establish th at the FIT Programme, and the individual solar PV
and windpower FIT and microFIT Contracts executed since the FIT Programme's inception, constitute
subsidies, or envisage the granting of subsidi es, within the meaning of Article 1.1 of the
SCM Agreement, and thereby that Canada has acted in consistently with Articles 3.1(b) and 3.2 of the
SCM Agreement.
2. Recommendations
8.4 Pursuant to Article 3.8 of the DSU, in cases wh ere there is infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment of bene fits under that agreement. Accordi ngly, we conclude that to the
extent Canada has acted inconsistently with Artic le 2.1 of the TRIMs Agreement and Article III:4 of
the GATT 1994, Canada has nullified or impaired benefits accruing to Japan.
8.5 We recommend that Canada bring its measures in to conformity with its obligations under the
TRIMs Agreement and the GATT 1994.

Page EU-140

B. COMPLAINT BY THE EUROPEAN UNION (DS426)
1. Conclusions
8.6 In the light of the findings set out in the fore going sections of this Repor t, we conclude that
European Union has established that the "Minimum Required Domestic Content Level" prescribed
under the FIT Programme, and implemented through the individual FIT and microFIT Contracts
executed since the FIT Programme's inception, pl aces Canada in breach of its obligations under
Article 2.1 of the TRIMs Agreement and Article III:4 of the GATT 1994.
8.7 On the other hand, in the light of the findings set out in the foregoing sections of this Report,
we conclude that the European Union has faile d to establish that the FIT Programme, and the
individual solar PV and windpower FIT and microF IT Contracts executed since the FIT Programme's
inception, constitute subsidies, or envisage the granting of subsidies, within the meaning of Article 1.1
of the SCM Agreement, and thereby that Canada has acted inconsistently with Articles 3.1(b) and 3.2
of the SCM Agreement.
2. Recommendations
8.8 Pursuant to Article 3.8 of the DSU, in cases wh ere there is infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment of bene fits under that agreement. Accordi ngly, we conclude that to the
extent Canada has acted inconsistently with Artic le 2.1 of the TRIMs Agreement and Article III:4 of
the GATT 1994, Canada has nullified or impaired benefits accruing to the European Union.
8.9 We recommend that Canada bring its measures in to conformity with its obligations under the
TRIMs Agreement and the GATT 1994.

IX. DISSENTING OPINION OF ONE MEMBER OF THE PANEL WITH RESPECT TO
WHETHER THE CHALLENGED MEASURES CONFER A BENEFIT WITHIN THE
MEANING OF ARTICLE 1.1(B) OF THE SCM AGREEMENT
A.
INTRODUCTION
9.1 The Panel majority has undertaken a long and car eful evaluation of the parties' arguments
concerning the question whether the challenged measures confer a benefit, ultimately concluding that
the complainants have failed to est ablish the existence of subsidization 642. While I agree with parts of
the Panel majority's benefit analysis, I respectfully disagree with certain key aspects of its reasoning
and ultimate findings. In essence, the Panel majority has found that the circumstances of ensuring a
reliable supply of electricity that achieves certain objectives sought by the Government of Ontario
justifies the rejection of the competitive wholesale el ectricity market as the relevant focus of the
benefit analysis. The Panel majority has furthe rmore suggested that, in these circumstances, the
existence of benefit could be determined by focusi ng upon the rate of return associated with the FIT
and microFIT Contracts and comparing this with the average cost of capital in Canada for projects
having a comparable risk profile.
9.2 I respectfully disagree with these findings and the alternative benefit test. The wholesale
electricity market that currently exists in Ontario is recognizable as a market for the buying and
selling of electricity. It is undeniable that the s upply of electricity, its price and competition between
electricity generators – in particular, market entr y – are very heavily regulated and conditioned in the
market by the Government of Ontario. The wholesal e electricity market that currently exists in
Ontario is therefore not the kind of market where price is determined by the unconstrained forces of
supply and demand. The regulatory impacts on the market are not simply in the nature of framework
regulation, within which those forces may operate. The Government of Ontario (through Hydro One)
and the municipal governments (through Local Distribution Companies) account for almost all
purchases of electricity made at the wholesale le vel. The same product, which in this case is
electricity, is purchased by these entities at differe nt prices depending upon its method of generation
or particular status in the Government of Ontari o's electricity supply policy, including under the FIT
Programme. In these circumstances the complainants have expressed their concern that an advantage
is being given to the market participants that are receiving the highest prices for the electricity they
produce, namely generators using solar PV a nd windpower technologies operating under the FIT
Programme. The Panel's task is to test that concern according to the disciplines of the SCM
Agreement.
9.3 The relevant question that a Panel in a case such as this must address is whether a benefit is
conferred on the recipient of the financial contribu tion. The wholesale electricity market in Ontario
does not allow for the discovery of a single market-clearing price established through the
unconstrained forces of supply and demand. In that market the Government of Ontario and the
municipal governments are the chief buyers of the go ods concerned. In these circumstances the Panel
must consider whether there is some appropriate fra me of reference for dete rmining if a benefit is
conferred in the provision of that financial c ontribution. In my view, the competitive wholesale
market for electricity that could exist in Ontario is the appropriate focus of the benefit analysis.
Furthermore, I am of the view that facilitating the entry of certain technologies into the market that
does exist – such as it is – by way of a financial contribution can itself be considered to confer a
benefit. In the light of these considerations, it fo llows from the arguments and evidence presented by
the complainants, as well as Canada's own statements, that the challenged measures confer a benefit,
within the meaning of Article 1.1(b) of the SCM Agreement.

642 See above at Section VII.C.3.

B.
THE COMPETITIVE WHOLESA LE ELECTRICITY MARKET IS THE RELEVANT FOCUS OF THE
BENEFIT ANALYSIS
9.4 As the Panel majority explained, a financial contribution will confer a benefit within the
meaning of Article 1.1(b) of the SCM Agreement when it confers an advantage upon its recipient. It is
well established that the existence of any such ad vantage is to be determined by comparing the
position of the recipient with and without the fi nancial contribution, and that "the marketplace
provides an appropriate basis for [making this] comparison" 643. Having found that the challenged
measures amount to "financial contribution[s]" in the form of "government purchases [of] goods", it
follows that the relevant "marketplace" must be th e competitive market where electricity is purchased
at the same level of trade as the government pur chases that are challenged in the present disputes,
namely, the wholesale level of trade.
9.5 The Panel majority concluded that the wholesal e electricity market currently operating in
Ontario cannot be used for the purpose of conducti ng the benefit analysis. In addition, the Panel
majority found that the competitive wholesale electricity market that could, in theory, exist in Ontario
could also not be used as a basis for the benef it analysis because, in the light of the prevailing
conditions of supply and demand, such a market would fail to attract the generation capacity needed
to secure a reliable supply of electricity for the people of Ontario
644. In my view, however, the fact
that a competitive market might not exist in the ab sence of government intervention or that it may not
achieve all of the objectives that a government w ould like it to achieve, does not mean it cannot be
used for the purpose of conducting a benefit analysis. Indeed, it is because competitive markets do not
often work the way that governments would like them to that governments will decide to influence
market outcomes by, for example, becoming a market participant, regulating market participants or
providing them with incentives (or creating disin centives) to behave in a particular way. A
government might also choose to intervene in comp etitive market outcomes by granting subsidies, as
defined in Article 1.1 of the SCM Agreement. Pr ovided that such subsidies are not prohibited under
Article 3 of the SCM Agreement, a government will be entitled to maintain such measures, subject to
the remedies available to other WTO Members unde r Parts III and V of the SCM Agreement where
either "adverse effects" or "material injury" is proven.
9.6 The Panel majority has come to a number of conclusions about the shortcomings of
competitive wholesale electricity markets and the inab ility of the market to achieve the legitimate
objectives of the Government of Ontario for its electri city system. However the fact that a market is
imperfect in its operation or does not meet the obj ectives that a government might have for the goods
or services which are traded in it does not shield financial contributions which take place in the
market from the benefit analysis that is require d under the SCM Agreement. In this regard, it is
important to recall that the Appellate Body has consistently identified the "marketplace" as the
relevant focus of a benefit analysis, regardless of its particular characteristics or imperfections:
The terms of a financial transaction must be assessed against the terms that would
result from unconstrained exchange in the re levant market. The relevant market may
be more or less developed; it may be made up of many or few participants. ... In some
instances, the market may be more rudiment ary. In other instances, it may be difficult
to establish the relevant market and its r esults. But these informational constraints do
not alter the basic framework from which th e analysis should proceed. ... There is but
one standard—the market standard … 645

643 Appellate Body Report, Canada – Aircraft, para. 157.
644 See above para. 7.312.
645Appellate Body Report, Japan – DRAMs (Korea), para. 172.

9.7 On the basis of the above considerations, I now turn to examine the merits of the two lines of
argument the complainants have advanced in support of their allegations of subsidization.
C.
WHETHER THE CHALLENGED MEASURES PROVIDE FOR "MORE THAN ADEQUATE
REMUNERATION" WITHIN THE MEANING OF ARTICLE 14(D) OF THE SCM AGREEMENT
9.8 The first line of benefit argument advanced by th e complainants follows the approach that is
described in the guidelines for calculating the amount of subsidy in terms of benefit contained in
Article 14(d) of the SCM Agreement. Although inte nded to guide benefit determinations for the
purpose of countervailing duty investigations, previous disputes tell us that the approach adopted by
the complainants may be one way of demonstrating the existence of benefit in the present
proceedings646. Thus, the complainants have advanced a series of different prices for electricity, which
they submit represent the price that a distributor or trader would have to pay for electricity in
Ontario's current wholesale electricity market, or are a proxy for that price. As the complainants note,
each of the proposed benchmark prices is outwardly lower than the prices received by solar PV and
windpower projects under the FIT Programme.
9.9 Before evaluating the merits of the complainants ' arguments, it is important to recall that the
guidelines in Article 14(d) of the SCM Agreement stipulate that the amount of benefit may be
calculated by identifying the extent to which "more th an adequate remuneration" has been paid for a
purchased product "in relation to prevailing market conditions" in the country of purchase. In the
present disputes, the complainants have not advanced country-specific price benchmarks, but rather
benchmarks based on prices established in regional intra-national markets operating in Canada, and
also the United States. The complainants appear to have done so because there are no national
electricity wholesale markets in Canada. In other words, the "prevailing market conditions" in the
country of purchase (Canada) are such that there ar e no country-wide electricity markets. In my view
Article 14(d) does not suggest that the prevailing market conditions can only be those of a national
market. Market conditions in a regional market of a country are, relevantly, market conditions "in the
country of purchase". In this light, the complainants ' approach is not inconsistent with the guidelines
stipulated in Article 14(d) of the SCM Agreement.
9.10 Returning to the substance of the complainant's benefit submissions, the competitive nature of
the IESO-administered wholesale electricity market in Ontario was closely examined by the Panel
majority, which found that the equilibrium level of th e HOEP that is set in this market is directly
related to the electricity pricing policy and supp ly-mix decisions of the Government of Ontario 647. I
agree with this finding. The Government of On tario's intervention in the IESO-administered
wholesale market price outcomes encompasses participation not only as a purchaser of electricity, but
also a generator, transmitter, distributor and pri ce-setter (for both generators and consumers). As a
result, the price outcomes of the IESO-administe red wholesale market (the HOEP) are significantly
distorted by the actions and policies of the Governme nt of Ontario. For this reason, the HOEP and all
related derivatives advanced by the complainants can not be used as appropriate market benchmarks
for the purpose of performing a benefit analysis under the terms of Article 14(d) of the SCM
Agreement
648. They do not represent a price established on a competitive wholesale electricity market
in Ontario.
9.11 The complainants also present the prices for el ectricity paid in four allegedly competitive
wholesale electricity markets outside of Ontario as proxies for the wholesale market price of

646 See above paras. 7.271-7.275.
647 See above paras. 7.298 and 7.300.
648 In this regard, I agree with the description of the relevant legal standard that is set out in the Panel
majority opinion above at paras. 7.271-7.275.

electricity in Ontario, and argue that these prices demonstrate that the challenged measures confer a
benefit. They are prices in Alberta, Canada (the "Alberta benchmark") and prices in New York, New
England, and the PJM Interconnection (the "US benchmarks")
649.
9.12 In US - Softwood Lumber IV , the Appellate Body found that where private prices for a
particular good provided by a government are "disto rted because of the government's predominant
role in providing those goods", Article 14(d) of the SCM Agreement permits investigating authorities
to use the price of the same or similar goods in a market outside of the country in question as a
benchmark for conducting a benefit analysis 650. However, the Appellate Body cautioned that when
"an investigating authority proceeds in this manner, it is under an obligation to ensure that the
resulting benchmark relates or refers to, or is c onnected with, prevailing market conditions in the
country of provision, and must reflect price, qua lity, availability, marketability, transportation and
other conditions of purchase or sale, as required by Article 14(d)". In addition, investigating
authorities must keep in mind that:
[P]rices in the market of a WTO Member would be expected to reflect prevailing
market conditions in that Member; they are unlikely to reflect conditions prevailing in
another Member. Therefore, it cannot be pr esumed that market conditions prevailing
in one Member, for instance the United Stat es, relate or refer to, or are connected
with, market conditions prevailing in anot her Member, such as Canada for example.
Indeed, it seems to us that it would be di fficult, from a practical point of view, for
investigating authorities to replicate reliably market conditions prevailing in one
country on the basis of market conditions pr evailing in another country. First, there
are numerous factors to be taken into account in making adjustments to market
conditions prevailing in one country so as to replicate those prevailing in another
country; secondly, it would be difficult to ensure that all necessary adjustments are
made to prices in one country in order to develop a benchmark that relates or refers
to, or is connected with, prevailing market conditions in another country, so as to
reflect price, quality, availability, marketability, transportation and other conditions of
purchase or sale in that other country.[]
It is clear, in the abstract, that different factors can result in one country having a
comparative advantage over another with respect to the production of certain goods.
In any event, any comparative advantage w ould be reflected in the market conditions
prevailing in the country of provision and, therefore, would have to be taken into
account and reflected in the adjustment s made to any method used for the
determination of adequacy of remuneration, if it is to relate or refer to, or be
connected with, prevailing market conditions in the market of provision. … 651
9.13 Like the Panel majority, I see no reason why the above principles that were pronounced in the
context of a dispute involving a financial contribution in the form of a government provision of goods
should not also apply in the context of the present disputes involving government purchases of goods.
9.14 Thus, in order for the complainants' US benchm arks to be validly applied in the benefit
analysis, it must be shown that they: (i) re present prices established in competitive wholesale
electricity markets – that is, wholesale electricity markets that are not significantly distorted by
government intervention such as that in Ontario; and (ii) must be adjusted to reflect the "prevailing
market conditions" for electricity in Ontario. The a pplication of the Alberta benchmark is subject to

649 Collectively, the "out-of-Province" benchmarks.
650 Appellate Body Report, US – Softwood Lumber IV, paras. 90, 103, and 115.
651 Appellate Body Report, US – Softwood Lumber IV, paras. 108-109. (footnote omitted)

the same consideration as set out in (i). Given that the Alberta benchmark is a price which does exist
"in the country of… purchase" a question arises as to whether th e consideration set out in (ii) is also
applicable. In my opinion it is equally applicable , because the "prevailing market conditions" in the
country of purchase include those of both Ontario and Alberta. Determining whether a benefit is
conferred "in relation to" prevaili ng market conditions in Canada includes a consideration of the
divisions between markets in that country, and how the conditions of a regional market (that of
Ontario) might need to be reflected in a price benchmark adopted from another regional market in that
country (that of Alberta).
9.15 With respect to whether the prices in the out -of-Province markets are established through the
unconstrained forces of supply and demand, Canada has not contested the complainants' assertions
that the wholesale electricity markets in Albert a and in New York, New England and in the PJM
Interconnection are competitive and would be availa ble as market price benchmarks (were it not for
the fact that they ignore the fundamental condition that the benchmark must relate to the purchase of
electricity generated from renewable sources of energy). Nevertheless, the complainants have not
presented the same detailed analysis of the allege d competitive nature of these markets as has been
advanced in respect of the IESO-administered whol esale market in Ontario. This is an important
deficiency because it is clear from the Hogan Repor t and other arguments and evidence presented in
these proceedings that governmental regulation of electricity systems and/or markets is very
pronounced across the world. There are many political, social and economic considerations
underlying such regulation. Moreover, the specific ch aracteristics of electricity (intangibility, inability
to store effectively and almost simultaneous production-consumption) and its critical importance to all
facets of modern life make it the type of pr oduct whose production, distribution and usage will
invariably be susceptible to varying degrees of govern ment intervention. Thus, in the absence of more
detailed information about how each of the four out-of-Province markets actually operates, it is
difficult to draw any definitive conclusions a bout their competitive nature for the purpose of
conducting a benefit analysis under Article 1.1(b) of the SCM Agreement
652.
9.16 In any case, the complainants have not made an y of the adjustments to the prices in the out-
of-Province markets that would need to be made in order to use them as appropriate benchmarks for
assessing the existence of benefit. As already noted, such adjustments would need to take into account
the "prevailing market conditions" in Ontario for el ectricity at the wholesale level of trade. Such
conditions might include: (i) the mix of generation technologies that are currently needed to satisfy
Ontario's overall baseload, intermed iate load and peak load dema nd; (ii) Ontario's particular
transmission grid characteristics; (iii) Ontario's comparative advantage (or disadvantages) with respect

652 Japan has referred the Panel to the website of the Independent Power Producers Society of Alberta,
and also provided Exhibits containing information about the electricity markets of Alberta, New York,
New England and the PJM Interconnection. (Japan's resp onse to Panel question No. 7 (first set), introducing
Exhibits JPN-208-211.) The information contained in these Exhibits suggests that competitive market
benchmarks may be derived from experiences in other electricity markets. However, the information provided
by Japan was not detailed enough to permit any definitive conclusions in this regard. In this respect, Japan
argued that:
Even if these benchmarks are not "perfect", they are "reasonable and objec tive", which as the panel
explained in US – Anti-Dumping and Countervailing Duties (China), is all that is required for purposes
of the benefit analysis. (footnote omitted)
The comments of the panel in US – Anti-Dumping and Countervailing Duties (China) that Japan refers to were
made in the context of its review of a decision by an investigating authority to impose a countervailing measure.
The panel's comments did not, however, relate to the acceptance of an out-of-country benchmark per se. The
comments related to the need for an investigating authority to identify a benchmark that "relates or refers to, or
is connected with" the prevailing market conditions in th e country of provision. It was a description of this
relationship, and of the adjustments necessary to allo w the acceptance of a benchmark based on out-of-country
information, that were absent from the submissions of the complainant in that dispute.

to accessing energy sources used to generate electri city; and (iv) key demand characteristics such as
population size, industrial base as well as seasona l or daily consumpti on fluctuations. The
complainants have failed to make any adjustment s to the out-of-Province prices to account for these
and other "prevailing market conditions" in Ontario, nor have they adequately explained away why
such adjustments need not be made. Thus, in my view, the evidence is not in a sufficient state to
enable the Panel to conduct the benefit analysis under the terms of Article 14(d) of the SCM
Agreement in the way the Appellate Body has insisted that it should be conducted
653.
D. WHETHER THE CHALLENGED MEASURES ENAB LE SOLAR PV AND WINDPOWER GENERATORS
TO CONDUCT VIABLE OPERATIONS AND THER EBY PARTICIPATE IN THE WHOLESALE
ELECTRICITY MARKET
9.17 The second line of benefit argument advanced by the complainants is focused on the very
nature and objectives of the FIT Programme. In pa rticular, the complainants submit that the FIT
Programme was created and operates for the purpo se of allowing generators of electricity from
renewable sources of energy, including solar and wind, to supply electricity into the Ontario
electricity system because a competitive wholesale electricity market could not support such high cost
producers. Thus, the complainants argue that in the absence of the FIT Programme, solar PV and
windpower generators would be una ble to support commercially viable operations in the wholesale
electricity market in Ontario654.
9.18 Canada accepts that in the absence of the FIT Programme, "most" of the contested FIT
generators would be unable to conduct viable operations. Thus, Canada explains that:
Like FIT programs in other parts of the wo rld, the Ontario FIT Program was created
to induce new renewable generation. As recognized by Japan, the Ontario 'FIT
Program … became necessary to encourage th e entry into the market of renewable
energy generators, most of which would not have entered the market in the absence of
the FIT Program655.
9.19 Moreover, referring to Ontario's episodic market opening experience in 2002, Canada states
that "the market alone would not be sufficient to encourage the construction of new generation
facilities able to provide the long-term supply needed by Ontario residents", adding that "[a]s
recognized by Japan, the OPA was created 'because the market structure established immediately
following the dissolution of Ontario Hydro in 1998 did not invite the sufficient entry of new

653 As made clear by the chapeau, Article 14(d) is a method for determining benefit "[f]or the purpose
of Part V" of the SCM Agreement. Article 1.1(b) is in Part I of the SCM Agreement. Nonetheless, Article 14(d)
strongly informs the interpretation of Article 1.1(b) in the case of the conferral of benefit from the sale or
purchase of products. In every case, considering whether and how to adjust an out-of-country benchmark so that
it could be said to be "in relation to prevailing mark et conditions" in the country concerned is a relevant
consideration. The European Union made reference to "the natural conditions prevailing in Ontario" in the
context of a comparison "with the ra tes in France and Germany, in add ition to all the evidence already put
forward by the European Union" (European Union's response to Panel question No. 27 (second set)). However
this reference does not discharge the burden of the "strong obligation" of considering "prevailing market
conditions" insisted upon by the Appellate Body in US - Softwood Lumber IV, para. 106.
654 Japan's second written submission, paras. 3-7; opening statement at the second meeting of the Panel,
paras. 10-13; comments on Canada's response to Panel questions No. 1 and 42 (second set); European Union's
second written submission, paras. 69-70, 103 and 105; and opening statement at the first meeting of the Panel,
paras. 23 and 27.
655 Canada's first written submission (DS412), para. 39.

generators, particularly generators using alternative and renewable energy sources'"
656. Thus, the OPA
was established with a mandate to:
[R]estructure Ontario's electricity sector, to promote the expansion of electricity
supply and capacity, including supply and capacity from alternative and renewable
energy sources … 657
9.20 That the FIT Programme was intended to bri ng about the entry of new generating capacity
from renewable sources of energy that would otherwise not exist in the Ontario wholesale electricity
market can also be understood from the objectives of the FIT Programme described in the Ministerial
Direction, which include to "[i]ncrease capacity of renewable energy supply to ensure adequate
generation and reduce emissions", to "[p]rovide incentives for investment in renewable energy
technologies" and "[e]nable new green industri es through new investment and job creation"
658.
Similarly, the FIT Rules explain that the "fundame ntal objective of the FIT Program, in conjunction
with the Green Energy and Green Economy Act of 2009 is to facilitate the increased development of
Renewable Generating Facilities of varying sizes, technologies and configurations …" 659.
9.21 Professor Hogan confirms that renewable energy technologies are typically too expensive to
be supported by the spot prices achieved on wholesale electricity markets 660. Table 2 (Ontario
Electricity Generation Mix) contained in the Pa nel majority's opinion identifies solar PV and
windpower technologies as having "very high" relative capital costs, with albeit "very low" relative
operating costs per kWh of electricity generated. This reflects the following specific cost data that is
provided in the Hogan Report661:

Table 3: Cost and Operating Characteristics of Different Generating Technologies

656 Canada's first written submission (DS412), para. 27.
657 Highlights of the Electricity Restructuring Act of 2004, Exhibit JPN-9.
658 Minister's 2009 FIT Direction, Exhibit JPN-102, p. 1.
659 FIT Rules, Exhibit JPN-119, Section 1.1.
660 Hogan Report, Exhibit CDA-2, pp. 15-18 and 36.
661 Hogan Report, Exhibit CDA-2, Table 1, p. 8.

9.22 According to Professor Hogan, the major cost s differences between solar and windpower
generating facilities compared with more "conventional" technologies exist for the following reasons:
The relatively small scale of wind and solar facilities leads to few if any economies of
scale in generation in comparison with large nuclear, coal, hydro and gas plants.
Wind and solar facilities have relatively low cap acity factors, due to their dependence
on the wind and the sun, meaning that th e generating facilities produce electricity for
a much smaller proportion of the hours of the year or day than conventional
generating technologies.
The relatively small base of experien ce in operating wind and solar generating
facilities means that there are fewer efficiencies in operating new facilities.
The lack of experience in constructing wind and solar generating facilities, leading to
relatively fewer efficiencies in constructing new facilities
662.
9.23 Thus, by contracting to purchase electric ity produced from solar PV and windpower
technologies under the FIT Programme at a price inte nded to provide for a reasonable return on the
investment associated with a "typical" project, th e Government of Ontario ensures that qualifying
generators are remunerated at a level that allows them to recoup the entirety of their "very high"
capital costs. As the complainants argue and Canada accepts, such levels of remuneration would never
be achieved through the unconstrained forces of supply and demand in a competitive wholesale
electricity market in Ontario. Nor could they be achieved within the constrained forces of supply and
demand which actually do operate within the wholesal e electricity market in Ontario, without an
intervention which remunerates the facilities whic h generate power from so lar PV and windpower
technologies at a higher rate than is paid in respect of electricity generated by the other
technologies663. It follows that by bringing these high cost and less efficient electricity producers into
the wholesale electricity market, when they would otherwise not be present, the Government of
Ontario's purchases of electricity from solar PV and windpower generators under the FIT Programme
clearly confer a benefit upon the relevant FIT genera tors, within the meaning of Article 1.1(b) of the
SCM Agreement.
FIT generators as features of the FIT and microFIT Contra cts that demonstrate the existence of benefit. See e.g.
Japan's opening statement at the second meeting of the Panel, paras. 10-13; and European Union's opening
statement at the second meeting of the Panel, para. 22.