INDIA – CERTAIN MEASURES RELATING TO SOLAR CELLS AND SOLAR MODULES NOTIFICATION OF AN APPEAL BY INDIA UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 25 April 2016
Document codes: WT/DS456/9
Complainant: U.S.
Respondent: India
Third parties: Brazil, Canada, China, EU, Japan, South Korea, Malaysia, Norway, Russia, Turkey, Ecuador, Saudi Arabia, Taiwan
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. III:4  GATT 1994Art. 2.1  Trade-Related Investment Measures (TRIMs)

INDIA – CERTAIN MEASURES RELATING TO SOLAR CELLS AND SOLAR MODULES
NOTIFICATION OF AN APPEAL BY INDIA
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
 The following communication, dated 20 April 2016, from the delegation of India, is being
circulated to Members.

 Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes ( t h e " D S U " ) a n d R u l e 2 0 o f t h e Working Procedures for
Appellate Review (WT/AB/WP/6) ("Working Procedures"), India hereby notifies its decision to
appeal certain issues of law covered by in the panel report in India– Certain Measures relating to
Solar Cells and Solar Modules () ("Panel Report"), and certain legal interpretations
developed by the Panel in this dispute.

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

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

I THE PANEL ERRED IN ITS FINDING THAT ARTICLE III:8(A) OF THE GATT 1994 IS
NOT APPLICABLE TO THE DCR MEASURES
1. India appeals the Panel's conclusion that the DC R measures are not covered by the derogation
under Article III:8(a) of the GATT 1994 for the following reasons:
i. The Panel erred in not considering India's arguments that solar cells and modules are
indistinguishable from solar power generation 2, and that in its factual and legal
assessment, it is not necessary to consider whether solar cells and modules qualify as
"inputs" for solar power generation. The basis for the Panel's reasoning was that the
Appellate Body in Canada – Renewable Energy / Feed-In Tariff Program , did not consider
this issue
3, while ignoring the fact that this issue was not presented for consideration
before the Appellate Body in that dispute.

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

ii. The Panel erred in its conclusion that discrimination relating to solar cells and modules
under the DCR measures is not covered by the derogation under Article III:8(a) of the
GATT 1994.
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2. India requests the Appellate Body to find that the Panel acted inconsistently with Article 11 of
the DSU in failing to consider and to make an objective assessment of India's arguments that:
(i) solar cells and modules are indistinguishable from solar power generation,
and (ii) solar cells and modules can be characterized as inputs for generation of solar power.
5
3. India further requests the Appellate Body to reverse the Panel's findings that the derogation
under Article III:8(a) of the GATT 1994 is not available for solar cells and modules since what
the Government purchases is electricity generated from such cells and modules 6 and instead
complete the analysis to find that the DCR measures are covered by the derogation under
Article III:8(a) of the GATT 1994.
4. Should the Appellate Body hold that the DCR measures are covered by the derogation under
Article III:8(a) of the GATT 1994, India requests the Appellate Body to complete the analysis
under Article III:8(a) of the GATT 1994 and find that:
i. The DCR measures are laws, regulations or requirements governing procurement;
ii. The procurement under the DCR measures is made by governmental agencies;
iii. The procurement under the DCR measures is of products purchased for governmental
purposes;
iv. The procurement and purchase of products under the DCR measures is not with a view to
commercial resale.
5. Based on the above, India requests the Appellate Body to find that the DCR measures are not
inconsistent with Article 2.1 of the TRIMs Agreement and Article III:4 of the GATT 1994.
II THE PANEL ERRED IN ITS FINDING THAT THE EXCEPTION UNDER ARTICLE XX(J) OF
THE GATT 1994 IS NOT APPLICABLE TO THE DCR MEASURES
1. Should the Appellate Body uphold the Panel's finding that the DCR measures are not covered
by the derogation of Article III:8(a) of the GA TT 1994, India requests the Appellate Body to
find that the Panel erred in its conclusion that the DCR measures are not justified under the
general exception in Article XX(j) of the GATT 1994.7
2. India also requests the Appellate Body to find that the Panel acted inconsistently with Article
11 of the DSU in its assessment of India's argu ments on "sufficient manufacturing capacity" 8;
by disregarding India's justification with regard to the DCR measures, and substituting it with
one which had no basis in India's submissions9; and in arriving at various conclusions based on
a piecemeal and selective analysis of two report s without providing India due process rights to
respond to its conclusions.10

4 Panel Report, paras. 7.100-7.187, particularly paras. 7.135 and 7.187.
5 Panel Report, para. 6.24, paras. 7.116-7.135, particularly paras. 7.116, 7.118, 7.123, 7.125, 7.126,
7.128.
6 Panel Report, paras.7.135 and 7.187.
 7 Panel Report, paras. 6.30-6.31, paras. 7.188-7.265, paras. 7.337-7.390, particularly paras. 7.189,
7.190, 7.207, 7.218, 7.236, 7.237, 7.265, 7.337-7.342, 7.346, 7.350, 7.354, 7.360-7.368, 7.380, 7.382,
7.389 and 7.390.
8 Panel Report, para. 7.226.
9 Panel Report, paras. 7.189, 7.190, 7.237, 7.337-7.342, 7.350, 7.351, 7.354, 7.360-7.363,
7.366-7.368 and 7.380.

3. India requests the Appellate Body to reverse the Panel's conclusion that the DCR measures are
not justified under Article XX(j) of the GATT 1994 and to complete the analysis under
Article XX(j) to find that:
i. India's lack of manufacturing capacity of solar cells and modules amounts to a situation
of local and general short supply of such prod ucts in India, and that the defence under
Article XX(j) is available to it;
ii. The DCR measures are essential for addressing the local and general short supply of solar
cells and modules;
iii. The DCR measures are justified under Article XX(j) of the GATT 1994 because they meet
with the requirements of the chapeau of Article XX.
III SUBSIDIARILY, THE PANEL ERRED IN IT S FINDING THAT THE DCR MEASURES ARE
NOT JUSTIFIABLE UNDER ARTICLE XX(D) OF THE GATT 1994
1. Should the Appellate Body find that the deroga tion under Article III:8(a) of the GATT 1994 is
not available for India, and that the DCR measures are not justifiable under Article XX(j) of the
GATT 1994, then India requests the Appellate Body to find that the Panel erred in its
conclusion that the DCR measures are not justified under the general exception in
Article XX(d) of the GATT 1994.
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2. India requests the Appellate Body to reverse the Panel's conclusion that the DCR measures are
not justified under Article XX(d) of the GATT 1994 and to complete the analysis under
Article XX(d) to find that:
i. The international and domestic laws and regulations identified by India, constitute laws
and regulations for the purpose of Article XX(d);
ii. The DCR measures are necessary for securing compliance with the mandate under India's
laws and regulations to achieve ecologically sustainable growth and sustainable
development; and
iii. The DCR measures are justified under Article XX(d) of the GATT 1994 because they meet
with the requirements of the chapeau of Article XX.