Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



The U.S. and EU Join Japan's WTO Complaint Against Ontario's Green Energy Act

Canada's Globe & Mail newspaper is reporting that "U.S., EU join fight over Ontario’s green energy plan". Shawn Murphy reports "The United States and the European Union emerged on Thursday as latest countries to say they have key commercial interests at stake and want to join the consultations on a complaint by Japan to the World Trade Organization." For the complete article, please go to the following link - http://www.theglobeandmail.com/news/politics/us-eu-join-fight-over-ontarios-green-energy-plan/article1736573/

The announcement is not yet available on the United States Trade Representative's website (www.ustr.org) or on the USTR's twitter account. the announcement is not yet posted on the World Trade Organization's web-site (www.wto.org). As a result, it cannot be confirmed whether the U.S. and EU are participating as third parties or whether they have filed corresponding requests for consultation.

Ontario passed the Green Energy and Green Economy Act, 2009 (the "Green Energy Act") in May 2009. For a good article on the legislation, please go to the following link - http://www.langmichener.ca/index.cfm?fuseaction=content.contentDetail&ID=10702&tID=244

On September 13, 2010, Japan filed a Request for Consultations with the WTO dispute settlement body (DSU) regarding Ontario's Green Energy Act. The measures at issue relate to domestic content requirements in the feed-in tariff program (the “FIT Program"). Japan claimed that the measures are inconsistent with Canada's obligations under Article III:4 and III:5 of the GATT 1994 because they appear to be laws, regulations or requirements affecting the internal sale, offering for sale, purchase, transportation, distribution, or use of equipment for renewable energy generation facilities that accord less favorable treatment to imported equipment than that accorded to like products originating in Ontario. In addition, Japan claimed that the measures could be internal quantitative regulations relating to the mixture, processing or use of a specified amount or proportion of equipment for renewable energy generation facilities which require that equipment for renewable energy generation facilities be supplied from Ontario sources. Japan further claimed that the measures appear to require the mixture, processing or use of equipment for renewable energy generation facilities supplied from Ontario in specified amounts or proportions, being applied so as to afford protection to Ontario production of such equipment, contrary to the principles of Article III:1 of the GATT 1994.

Japan also claimed that the measures appear to be inconsistent with Article 2.1 of the TRIMs Agreement because they appear to be trade-related investment measures that are inconsistent with the provisions of Article III of the GATT 1994.

Finally, Japan alleged that it appears that a subsidy is granted under the measures because there would be a financial contribution or a form of income or price support, and a benefit is thereby conferred. It is also claimed that the subsidy would be a prohibited subsidy under Articles 3.1(b) and 3.2 of the SCM Agreement because it appears to be provided “contingent … upon the use of domestic over imported goods���, namely contingent upon the use of equipment for renewable energy generation facilities produced in Ontario over such equipment imported from countries such as Japan.

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