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Biofuels and WTO Law

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European Yearbook of International Economic Law 2011

Part of the book series: European Yearbook of International Economic Law ((EUROYEAR,volume 2))

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Abstract

Climate change and energy dependence have placed alternatives to fossil energy at the centre of public perception in industrialized countries. Hence, biofuels became an ever more important issue on their political agenda, leading to an increase in demand and global trade. Applying the global trade order of the WTO to biofuels, however, raises several problems. As there is no specific trade regime for biofuels, they have to be treated according to the general rules. This necessitates first determining in detail which WTO disciplines and rules apply. The debate about how to apply WTO rules to the biofuels sector gained momentum with a famous International Food & Agricultural Trade Policy Council report written among others by Robert Howse.

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Notes

  1. 1.

    Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006.

  2. 2.

    The EU tariff on ethanol is around 60% (depending on the price of ethanol); on biodiesel it is 6.5%.

  3. 3.

    The Doha Declaration (para. 31 (iii)) calls for the reduction or elimination of tariff and non-tariff barriers for environmental goods.

  4. 4.

    The production costs, for example, of ethanol made from wheat in Europe are almost twice as high as those when it is made from sugar cane in India.

  5. 5.

    The environmental friendliness of biofuels can be assessed critically because of the risks to biological diversity and food supply security and because of poorly sustainable growth of certain feedstocks. It is not self-evident whether biofuels produce more energy than is necessary for their production and whether their greenhouse gas balance really is positive when looking at their complete life cycle. See, inter alia, Echols, Biofuels Certification and the Law of the WTO, ICTSD Agricultural Trade and Sustainable Development, Issue paper 19, August 2009, p. 4. This may change with second-generation biofuels, which are based on non-food plants or plant waste.

  6. 6.

    See Zarrilli, Biotechnology in the energy sector: some implications for developing countries, in: Wüger/Cottier (eds.), Genetic Engineering and the World Trade System, 2008, pp. 151 et seq. (170–172).

  7. 7.

    Directive 2009/28/EC on the promotion of the use of energy from renewable sources, OJ 2009 L 140/16.

  8. 8.

    See, e.g., the critical assessment by Mitchell/Tran, The Consistency of the EU Renewable Energy Directive with the WTO Agreements, Georgetown Law Faculty Working Papers, October 2009.

  9. 9.

    Sugathan, Enhancing market access for biofuels: What roles for environmental goods negotiations? BioRes 8 (2008) 4, p. 8.

  10. 10.

    Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 13 points, however, to certain remedies, e.g. by requiring colouring.

  11. 11.

    See Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 11.

  12. 12.

    BISD 28S/102, para. 4.4.

  13. 13.

    See Appellate Body, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R, paras. 273 et seq.

  14. 14.

    See Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, pp. 10, 13.

  15. 15.

    van den Bossche, The Law and Policy of the WTO, (2nd ed.) 2008, p. 330.

  16. 16.

    Loc.cit (fn. 11), para. 4.5–6

  17. 17.

    See para 4.7.

  18. 18.

    See van den Bossche, The Law and Policy of the WTO, (2nd ed.) 2008, p. 334, who calls for future clarification by the Appellate Body.

  19. 19.

    Panel, EC – Conditions for the Granting of Tariff Preferences to Developing Countries (EC-GSP), WT/DS246/R, para. 7.59.

  20. 20.

    See Panel, Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, paras. 14.145–147 and Panel, Canada – Certain Measures Affecting the Automotive Industry, WT/DS42/R, para. 10.23, though both panels have slightly divergent views.

  21. 21.

    Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 14.

  22. 22.

    Regarding the discriminatory effect/group approach see Lester/Mercurio, World Trade Law, 2008, pp. 275 et seq.

  23. 23.

    Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 14.

  24. 24.

    Decision of 28 November 1979 on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries.

  25. 25.

    See Bartels, The WTO Enabling Clause and Positive Conditionality in the EC’s GSP Program, JIEL 6 (2003), p. 507; Switzer, Environmental Protection and the generalized system of preferences: A legal and appropriate linkage? ICLQ 57 (2008), p. 113.

  26. 26.

    Which was the approach adopted by the WTO Panel in WT/DS246/R, para. 7.161 according to which identical preferences to all developing countries without differentiation were required. The Appellate Body reversed this in EC-GSP, WT/DS246/AB/R, para. 174.

  27. 27.

    Appellate Body, EC-GSP, WT/DS246/AB/R, para. 173.

  28. 28.

    For more detail see Switzer, Environmental Protection and the generalized system of preferences: A legal and appropriate linkage? ICLQ 57 (2008), pp. 113 et seq. (132).

  29. 29.

    Appellate Body, EG-GSP, WT/DS/246/AB/R, para. 163.

  30. 30.

    Thus, an incentive for sustainable biofuel producing developing countries made dependent on the conformity with these instruments is regarded as lawful under the GSP, Switzer, International Trade Law and the Environment: Designing A Legal Framework To Curtail the Import of Unsustainably Produced Biofuels, Journal of International Trade Law and Policy 8 (2007), pp. 30 et seq. (42–43).

  31. 31.

    See Brühwiler/Hauser, Biofuels and WTO disciplines, Aussenwirtschaft 63 (2008), pp. 7 et seq. (21).

  32. 32.

    See Apea/Shaffer, Institutional Choice in the GSP case: Who decides the Conditions for Trade Preferences? J.W.T. 39 (2005), pp. 977 et seq. (997–999); Switzer, Environmental Protection and the generalized system of preferences: A legal and appropriate linkage? ICLQ 57 (2008), pp. 113 et seeq. (140–145).

  33. 33.

    Article III:2 GATT only applies to internal taxes on goods/products, and not to income taxes or import duties. Income taxes might however be relevant under Article III:4 GATT as this paragraph applies to domestic regulations in a broad sense, see van den Bossche, The Law and Policy of the WTO, (2nd ed.) 2008, pp. 349 et seq., fn. 116.

  34. 34.

    See van den Bossche, The Law and Policy of the WTO, (2nd ed.) 2008, pp. 349 et seq. (359).

  35. 35.

    Substantial tax differences are protective and violate Article III:2 GATT.

  36. 36.

    Adopted 2 December 1979, L/3464.

  37. 37.

    See Appellate Body, EC – Measures Affecting Asbestos and Asbestos Containing Products (EC – Asbestos), WT/DS135/AB/R, para. 133; though the jurisprudence on likeness is contested, this contribution builds on it. For a completely different, more economic approach on likeness see Choi, “Like Products” in International Trade Law, 2003.

  38. 38.

    Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, p. 25; Appellate Body, Canada – Certain Measures Concerning Periodicals, WT/DS31/AB/R, p. 25.

  39. 39.

    See Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 25.

  40. 40.

    Appellate Body, EC – Measures Affecting Asbestos and Asbestos Containing Products (EC – Asbestos), WT/DS135/AB/R, para. 128.

  41. 41.

    See also van Dam et al., Overview of recent developments in sustainable biomass certification, Biomass and Bioenergy 2008, pp. 749 et seq. (765).

  42. 42.

    See Panel, US – Restrictions on Imports of Tuna, DS21/R, para. 5.9–5.19.

  43. 43.

    For an overview of recent developments see van Dam et al., Overview of recent developments in sustainable biomass certification, Biomass and Bioenergy 2008, p. 749.

  44. 44.

    Doha Ministerial Declaration, para. 32.

  45. 45.

    See the report to the fifth session of the WTO Ministerial Conference in Cancún, WT/CTE/8 para. 37.

  46. 46.

    See Zah et al. Standardized and simplified life-cycle assessment (LCA) as a driver for more sustainable biofuels, Journal of Cleaner Production 17 (2009) Supplement 1, p. S102.

  47. 47.

    Echols, Biofuels Certification and the Law of the WTO, ICTSD Agricultural Trade and Sustainable Development, Issue paper 19, August 2009, p. 1.

  48. 48.

    See also Choi, “Like Products” in International Trade Law, 2003, pp. 111–112.

  49. 49.

    Appellate Body, EC – Measures Affecting Asbestos and Asbestos Containing Products (EC – Asbestos), WT/DS135/AB/R, para. 117.

  50. 50.

    See Howse/Türk, The WTO impact on Internal Regulations – A case study of the Canada-EC Asbestos Dispute, in: Burca/Scott (eds.), The EU and the WTO, 2001, pp. 283 et seq. (287).

  51. 51.

    Appellate Body, EC – Measures Affecting Asbestos and Asbestos Containing Products (EC – Asbestos), WT/DS135/AB/R, para. 118, 136.

  52. 52.

    Appellate Body, EC – Measures Affecting Asbestos and Asbestos Containing Products (EC – Asbestos), WT/DS135/AB/R, para. 121.

  53. 53.

    Marceau/Trachtman, A Map of the World Trade Organization Law of Domestic Regulation of Goods, in: Berman/Mavroidis (eds.), Trade and Human Health and Safety, 2006, pp. 9 et seq. (55 et seq.).

  54. 54.

    Marceau/Trachtman, A Map of the World Trade Organization Law of Domestic Regulation of Goods, in: Berman/Mavroidis (eds.), Trade and Human Health and Safety, 2006, p. 56.

  55. 55.

    See also Marceau/Trachtman, A Map of the World Trade Organization Law of Domestic Regulation of Goods, in: Berman/Mavroidis (eds.), Trade and Human Health and Safety, 2006, p. 56 fn. 194.

  56. 56.

    See also Zarrilli/Burnett, Certifying biofuels: benefits for the environment, development and trade?, in Cottier/Nartova/Bigdeli (eds.), International Trade Regulation and the Mitigation of Climate Change, 2009, pp. 197 et seq. (217).

  57. 57.

    Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 27.

  58. 58.

    Marceau/Trachtman, A Map of the World Trade Organization Law of Domestic Regulation of Goods, in: Berman/Mavroidis (eds.), Trade and Human Health and Safety, 2006, p. 57.

  59. 59.

    See Brühwiler/Hauser, Biofuels and WTO disciplines, Aussenwirtschaft 63 (2008), pp. 7 et seq. (26 et seq.).

  60. 60.

    See again Marceau/Trachtman, A Map of the World Trade Organization Law of Domestic Regulation of Goods, in: Berman/Mavroidis (eds.), Trade and Human Health and Safety, 2006, p. 57.

  61. 61.

    See Echols, Biofuels Certification and the Law of the WTO, ICTSD Agricultural Trade and Sustainable Development, Issue paper 19, August 2009, p. 13.

  62. 62.

    WT/DS135/AB/R, para. 100 – EC – Asbestos.

  63. 63.

    R. Howse/E. Türk, The WTO impact on Internal Regulations – A Case Study of the Canada-EC Asbestos Dispute, in Burca/Scott (eds.), The EU and the WTO, 2001, 283 at 289.

  64. 64.

    A formal difference in treatment is neither necessary nor sufficient to show a violation of Article III:4, and a measure even though equally applicable to importers and domestic producers might in certain circumstances nevertheless amount to a less favourable treatment, see Appellate Body, WT/DS161/AB/R, WT/DS169/AB/R, para. 137 – Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, and Appellate Body, WT/DS 302/AB/R, para. 94 – Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes.

  65. 65.

    Appellate Body, EC – Measures Affecting Asbestos and Asbestos Containing Products (EC – Asbestos), WT/DS135/AB/R, para. 100.

  66. 66.

    Mavroidis, Trade in Goods, 2007, p. 252.

  67. 67.

    Appellate Body, Dominican Republic – Cigarettes, WT/DS302/AB/R, para. 96.

  68. 68.

    Panel, EC – Measures Affecting the Approval and Marketing of Biotech Products (EC – GMO), WT/DS291/R, WT/DS292/R, WT/DS293/R, para. 7.2514.

  69. 69.

    Zarrilli/Burnett, Certifying biofuels: benefits for the environment, development and trade?, in: Cottier/Nartova/Bigdeli (eds.), International Trade Regulation and the Mitigation of Climate Change, 2009, pp. 197 et seq. (219).

  70. 70.

    See Appellate Body, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS 302/AB/R, para. 94.

  71. 71.

    See Panel, Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes, DS 10/R, para. 78.

  72. 72.

    Directive 2009/28/EC on the promotion of the use of energy from renewable sources, OJ 2009 L 140/16.

  73. 73.

    See Mitchell/Tran, The Consistency of the EU Renewable Energy Directive with the WTO Agreements, Georgetown Law Faculty Working Papers, October 2009, paras. 6, 16.

  74. 74.

    Mitchell/Tran, The Consistency of the EU Renewable Energy Directive with the WTO Agreements, Georgetown Law Faculty Working Papers, October 2009, para. 23. In para. 18 essentially the same argument is made with regard to Article I GATT and the required unconditional accord of any advantage.

  75. 75.

    See Panel, US – Restrictions on Imports of Tuna, DS 21/R, para. 5.10 et seq.; Panel, US – Restrictions on Import of Tuna, DS29/R, para. 5.16–5.18, and Matsushita/Schoenbaum/Mavroidis, The World Trade Organization, (2nd ed.) 2006, pp. 240–41, 244–45.

  76. 76.

    van den Bossche, The Law and Policy of the WTO, (2nd ed.) 2008, p. 447.

  77. 77.

    Accord Mavroidis, Trade in Goods, 2007, p. 60.

  78. 78.

    Pauwelyn, Rien ne Va plus? Distinguishing Domestic Regulation from Market Access in GATT and GATS, World Trade Review 4 (2005), pp. 131 et seq. (147). See also Howse/Regan, The product/process distinction – An illusory basis for disciplining “unilateralism” in trade policy, EJIL 11 (2000), p. 249; Herrmann/Weiß/Ohler, Welthandelsrecht, (2nd ed.) 2007, mn. 519.

  79. 79.

    E.g. Aidelojie/Makuch, Multilateral Organisations, Fossil Fuels and Energy Law and Policy: The Tower of Babel revisited, European Energy and Environmental Law Review 2008, pp. 227 et seq. (247). This approach is also taken by Brühwiler/Hauser, Biofuels and WTO disciplines, Aussenwirtschaft 63 (2008), pp. 7 et seq. (27), who opine that if unsustainably produced biofuels are entirely barred from import, this amounts to a prohibited quantitative restriction.

  80. 80.

    Appellate Body, US – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R.

  81. 81.

    Contra Zarrilli/Burnett, Certifying biofuels: benefits for the environment, development and trade?, in Cottier/Nartova/Bigdeli (eds.), International Trade Regulation and the Mitigation of Climate Change, 2009, pp. 197 et seq. (223).

  82. 82.

    See Appellate Body, US – Gasoline, WT/DS2/AB/R, p. 21.

  83. 83.

    Appellate Body, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, para. 150 et seq.

  84. 84.

    See also Brühwiler/Hauser, Biofuels and WTO disciplines, Aussenwirtschaft 63 (2008), pp. 7 et seq. (28).

  85. 85.

    von Bogdandy, Legitimacy of International Economic Governance: Interpretative Approaches to WTO law and the Prospects of its Proceduralization”, in: Griller (ed.), International Economic Governance and Non-Economic Concerns, 2003, pp. 103 et seq. (136).

  86. 86.

    The intricate issue of which type of regulation could be defined as extraterritorial cannot be addressed here. For a rather limited notion see Vranes, Trade and the Environment, 2009, pp. 166 et seq. (181), who categorizes process-based trade measures usually not to be extraterritorial because they do not directly regulate conduct on foreign territory but make the actual application of the regulatory requirements dependent on the act of importation.

  87. 87.

    Panel, US – Restrictions on Import of Tuna, DS21/R, para. 5.27, 5.32.

  88. 88.

    Appellate Body, US – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, para. 121 –; see Panel, US – Restrictions on Import of Tuna, DS29/R, para. 5.16–5.20.

  89. 89.

    Appellate Body, US – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, para. 133.

  90. 90.

    See Committee on Trade and Environment, WT/CTE/W/10; Joshi, Are Eco-Labels Consistent with WTO agreements?, J.W.T. 38 (2004), pp. 69 et seq. (74).

  91. 91.

    Zarrilli/Burnett, Certifying biofuels: benefits for the environment, development and trade?, in: Cottier/Nartova/Bigdeli (eds.), International Trade Regulation and the Mitigation of Climate Change, 2009, pp. 197 et seq. (212).

  92. 92.

    See Vranes, Trade and the Environment, 2009, pp. 316–317, 340.

  93. 93.

    See also Marceau/Trachtman, A Map of the World Trade Organization Law of Domestic Regulation of Goods, in: Berman/Mavroidis (eds), Trade and Human Health and Safety, 2006, pp. 9 et seq. (59); Vranes, Trade and the Environment, 2009, pp. 338–340.

  94. 94.

    Switzer, International Trade Law and the Environment: Designing A Legal Framework To Curtail the Import of Unsustainably Produced Biofuels, Journal of International Trade Law and Policy 6 (2007), pp. 30 et seq. (41).

  95. 95.

    http://www.cgse.epfl.ch/page84341.html (accessed 7 January 2010); Zarrilli/Burnett, Certifying biofuels: benefits for the environment, development and trade?, in Cottier/Nartova/Bigdeli (eds.), International Trade Regulation and the Mitigation of Climate Change, 2009, pp. 197 et seq. (206 et seq.).

  96. 96.

    S. Zarrilli/Burnett, Certifying biofuels: benefits for the environment, development and trade?, in Cottier/Nartova/Bigdeli (eds.), International Trade Regulation and the Mitigation of Climate Change, 2009, pp. 197 et seq. (213).

  97. 97.

    SPS only applies to measures that protect health within the territory of the regulating WTO member (thus, there is a clear jurisdictional limitation, in contrast to the debate under Article XX GATT). Nevertheless, the regulation of the importing WTO member can impact on the production methods in the exporting WTO member if they impact on the health situation in the importing WTO member, see Marceau/Trachtman, A Map of the World Trade Organization Law of Domestic Regulation of Goods, in: Berman/Mavroidis (eds.), Trade and Human Health and Safety, 2006, pp. 9 et seq. (60).

  98. 98.

    See Annex A (1) (d) and Panel, EC – GMO, WT/DS291/R, WT/DS292/R, WT/DS293/R, para. 7.209.

  99. 99.

    Panel, EC – GMO, WT/DS291/R, WT/DS292/R, WT/DS293/R, para. 7.165–7.167.

  100. 100.

    This point was raised by the EC in the EC – GMO case, see Panel, WT/DS291/R, WT/DS292/R, WT/DS293/R, para. 7.185–7.187; see also Herrmann/Weiß/Ohler, Welthandelsrecht, (2nd ed.) 2007, mn. 598.

  101. 101.

    Panel, EC – GMO, WT/DS291/R, WT/DS292/R, WT/DS293/R, para. 7.239–7.242.

  102. 102.

    See Appellate Body, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, para. 208.

  103. 103.

    The precautionary principle is reflected in Article 5.7 SPS, Appellate Body, US – Continued Suspension of Obligations in the EC Hormones Dispute, WT/DS320/AB/R, para. 680.

  104. 104.

    Appellate Body, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, para. 179.

  105. 105.

    Appellate Body, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, para. 184.

  106. 106.

    Appellate Body, US – Continued Suspension of Obligations in the EC Hormones Dispute, WT/DS320/AB/R, para. 679; the WTO member adopting a provisional measure bears the burden of proof as regards the insufficiencies in the existing scientific evidence which precluded it from performing an objective risk assessment, para. 716.

  107. 107.

    Appellate Body, US – Continued Suspension of Obligations in the EC Hormones Dispute, WT/DS320/AB/R, para. 685.

  108. 108.

    Appellate Body, US – Continued Suspension of Obligations in the EC Hormones Dispute, WT/DS320/AB/R, para. 694 et seq.

  109. 109.

    Appellate Body, US – Continued Suspension of Obligations in the EC Hormones Dispute, WT/DS320/AB/R, para. 710.

  110. 110.

    Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 16.

  111. 111.

    Harmer, Biofuels subsidies and the law of the WTO, ICTSD Agricultural Trade and Sustainable Development, Issue paper 20, June 2009, p. 9.

  112. 112.

    Harmer, Biofuels subsidies and the law of the WTO, ICTSD Agricultural Trade and Sustainable Development, Issue paper 20, June 2009, p. 10.

  113. 113.

    Appellate Body, US – Tax Treatment for “Foreign Sales Corporations”, WT/DS108/AB/R, para. 90.

  114. 114.

    See also Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 19.

  115. 115.

    See Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 17.

  116. 116.

    Panel, US – Final CVD Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/R, para. 7.46.

  117. 117.

    Panel, US – Final CVD Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/R, para. 7.50.

  118. 118.

    Appellate Body, US – Final CVD Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, para. 87.

  119. 119.

    Appellate Body, US – Final CVD Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, para. 90.

  120. 120.

    Appellate Body, US – Final CVD Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, para. 97

  121. 121.

    Appellate Body, US – Final CVD Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, para. 100.

  122. 122.

    See Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 20.

  123. 123.

    Appellate Body, US – Final CVD Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, paras. 124, 129 and 140.

  124. 124.

    As Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 20 opines.

  125. 125.

    Appellate Body, US – Final CVD Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, paras. 142 et seq.

  126. 126.

    See Panel, US – Preliminary Determinations with Respect to Certain Softwood Lumber from Canada, WT/DS236/R, paras. 7.71–7.72.

  127. 127.

    Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 22.

  128. 128.

    See Appellate Body, US – Subsidies on Upland Cotton, WT/DS267/AB/R, paras. 325, 329, 341–342.

  129. 129.

    Contra Howse et al., WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Marketplace, IPC Discussion Paper, October 2006, p. 21, with the argument that the HS classification of ethanol does not reflect its use as a biofuel. Although this point is correct, the AoA has a clear definition with regard to what is regarded as an agricultural product in Annex 1. It is not very convincing to apply to Annex 2 a definition of agricultural production different from that in Annex 1.

  130. 130.

    See Harmer, Biofuels subsidies and the law of the WTO, ICTSD Agricultural Trade and Sustainable Development, Issue paper 20, June 2009, p. 11.

  131. 131.

    Echols, Biofuels Certification and the Law of the WTO, ICTSD Agricultural Trade and Sustainable Development, Issue paper 19, August 2009, p. 33.

  132. 132.

    Kaditi, Bio-energy policies in a global context, Journal of Cleaner Production 17 (2009) Supplement 1, p. S4 et seq. (S8).

  133. 133.

    A warning was uttered by Brühwiler/Hauser, Biofuels and WTO disciplines, Aussenwirtschaft 63 (2008) 1, p. 7 (33).

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    Wolfgang Weiß

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  1. LS für Staats- und Verwaltungsrecht,, Europarecht, Europäisches und, Universität Passau, Innstr. 39, Passau, 94032, Germany

    Christoph Herrmann

  2. , School of Law, University of Hamburg, Rothenbaumchaussee 33, Hamburg, 20148, Germany

    Jörg Philipp Terhechte

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Weiß, W. (2011). Biofuels and WTO Law. In: Herrmann, C., Terhechte, J. (eds) European Yearbook of International Economic Law 2011. European Yearbook of International Economic Law(), vol 2. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-14432-5_8

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