Abstract
There is a widely considered view that trade in energy and energy products is not adequately governed by the multilateral trade rules administered by the World Trade Organization (WTO). This view is reinforced by the fact the traditional market access restrictions are less of a problem in the energy sector as countries tend to focus on retaining control and sovereignty over energy resources. A mapping of linkages between the WTO rules and trade in the energy sector has highlighted the inadequacy of international trade rules in a number of areas such as export duties and export restrictions, energy transit, renewable energy sector, government support including dual pricing policies, classification of energy services, and lack of flexibility in differentiating goods based on carbon intensity or other such characteristics. Again, when the energy-related trade measures violate WTO rules, the various exceptions and exemptions under the WTO covered agreements also play a central role. Although the growing body of WTO jurisprudence has addressed the inherent inadequacies of the rules in meeting the challenges of energy security, there are several areas where significant improvements in existing provisions and separate or new disciplines may be necessary. This chapter while examining the interaction between WTO rules and energy security also seeks to identify the specific issues in the Chairman’s texts in different areas of Doha Round negotiations, which have a direct bearing on trade in energy products.
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Notes
- 1.
Appellate Body Report on European Communities—Measures affecting Asbestos, WT/DS135/AB/R, at paragraph 102 (Hereinafter EC—Asbestos); Appellate Body Report on Japan—Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R at paragraph 113 (Hereinafter Japan—Alcoholic Beverages).
- 2.
Appellate Body Report on EC—Asbestos, paragraph 18.
- 3.
GATT jurisprudence has made it clear that distinguishing products based on their process and production methods are not valid. The panel in US—Restrictions on Imports of Tuna explicitly ruled that distinctions must be based on characteristics that affect tuna as a product. See also Appellate Body Report on Japan—Alcoholic Beverages at paragraph 29.
- 4.
Appellate Body report EC-Asbestos, at paragraph 135–136. Although the Appellate Body rejected the ‘aim-and-effect’ test in Japan—Alcoholic Beverages, it noted in paragraph 29 as follows: “[w]e believe it is possible to examine objectively the underlying criteria used in a particular tax measure, its structure and its overall application to ascertain whether it is applied in a way that affords protection to domestic product.”
- 5.
Appellate Body report on United States—Measures affecting the Production and Sale of Clove Cigarettes, WT/DS 406/AB/R, at paragraph 104 (Hereinafter US—Clove Cigarettes).
- 6.
Panel Report on Mexico—Tax Measures on Soft Drinks and Other Beverages, WT/DS308/R, at paragraph 8.27–8.36 (Hereinafter Mexico—Taxes on Soft Drinks).
- 7.
Australia enacted the Clean Energy Act of 2011, which incorporates a carbon tax.
- 8.
WTO Legal Texts: Annex 1(1) of the TBT Agreement.
- 9.
See EC Press Release (2012) and Directive (2009/28/EC). As of October 2012, the Commission proposed that the use of food-based biofuels to meet the 10 % target be limited to 5 %.
- 10.
Ibid. Argentina and Indonesia opposed this EC Directive. Argentina noted that the Directive was an unnecessary obstacle to trade due to its unjustified restrictions on imports of biofuels, by requiring, on one side, the compliance and certification of sustainability criteria and, on the other side, the fulfillment of emissions reduction requirements. See also Specific Trade Concerns Raised in WTO TBT Committee (2011).
- 11.
Panel Report on India—Quantitative Restrictions on Imports of Agricultural, Textiles and Industrial Products, WT/DS90/R (Hereinafter India—Quantitative Restrictions) at paragraph 5.128.
- 12.
Panel Report on Colombia—Indicative Prices and Restrictions on Ports of Entry, WT/DS366/R, at paragraph 7.240 (Hereinafter Colombia—Ports of Entry).
- 13.
Panel Report on India—Measures affecting the Automotive Sector, WT/DS146/R, WT/DS175/R, at paragraph 7.270 (Hereinafter India—Autos).
- 14.
Panel Report on Japan—Trade in Semiconductors, BISD 35S/116, at paragraph 118 (Hereinafter Japan—Semiconductors).
- 15.
Panel Report on Japan—Semiconductors, at paragraph 117.
- 16.
Panel Report on Canada—Certain Measures Affecting Renewable Energy, WT/DS412/R, WT/DS426/R (Hereinafter Canada—Renewable Energy).
- 17.
Panel Report on Indonesia—Certain Measures affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, at paragraph 14.82 (Hereinafter Indonesia—Autos).
- 18.
Panel Report on Colombia—Ports of Entry, WT/DS366/R at paragraph 7.401.
- 19.
Panel Report on Colombia—Ports of Entry, at paragraph 7.466.
- 20.
WTO Working Party Report on the Accession of Ukraine (2008), paragraph 367.
- 21.
In 2007, Canada challenged subsidies provided by the United States for corn and other agricultural products. See request for consultations by Canada, WT/DS 357/1 January 2007. Brazil had also challenged, inter alia, the gasoline and diesel tax exemptions for biofuels. See request for consultations by Brazil, WT/DS 365/1 July 2007.
- 22.
See Appellate Body Report in Canada—Renewable Energy.
- 23.
Appellate Body Report on Canada—Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, at paragraph 157 (Hereinafter Canada—Aircraft).
- 24.
Draft Report: Luthra and Luthra, Study on Dual Pricing of Natural Resources.
- 25.
Appellate Body Report on United States—Measures Affecting Trade in Large Civil Aircraft, WT/DS353/AB/R, at paragraph 749 (Hereinafter US—Civil Aircraft).
- 26.
Appellate Body Report on US—Civil Aircraft at paragraph 796, 878. The Appellate Body noted at paragraph 796, “[i]f, notwithstanding any appearance of non-specificity resulting from the operation of the principles of laid down in sub paragraphs (a) and (b), there are reasons to believe that the subsidy may be specific, other factors may be considered.”
- 27.
Appellate Body Report on US—Civil Aircraft, at paragraph 878, 879.
- 28.
Panel Report on US—Softwood Lumber, at paragraph 7.116, 7.119.
- 29.
Panel Report on US—Softwood Lumber, at paragraph 7.116.
- 30.
Appellate Body Report on US—Civil Aircraft at paragraph 10.
- 31.
Appellate Body Report on US—Civil Aircraft, at paragraph at 10.
- 32.
Panel Report on EC—Countervailing Measures on Dynamic Random Access Memory Chips from Korea , WT/DS299/R, at paragraph 7.175 (Hereinafter EC —DRAMS).
- 33.
Appellate Body Report on EC—Measures Affecting Trade in Large Civil Aircraft, WT/DS 316/AB/R, at paragraph 981 (Hereinafter EC—Large Civil Aircraft).
- 34.
Draft Text of the Chairman of the Negotiating Group on Subsidies and Countervailing Measures, MTN/GNG/NG10/W/38/Rev.2 (2 November 1990).
- 35.
Appellate Body Report on Canada—Renewable Energy, at paragraph 5.163.
- 36.
Ibid, paragraph 5.163, third sentence. In the context of facts of the case, the Appellate body noted that the ‘benefit should not be conducted within the competitive wholesale market as a whole, but within the competitive markets for wind and solar PV generated electricity.
- 37.
GATT Working Party Report on Border Tax Adjustment (1970).
- 38.
The SCM Agreement clearly permits indirect taxes on exports to be rebated provided the amount of the rebate does not exceed the amount of tax. A number of commentators also opine that a downstream carbon taxes constitute an indirect tax.
- 39.
Panel Report on United States—Tax on Petroleum and Certain Imported Substances, BISD, 34S/136 (Hereinafter US—Superfund).
- 40.
Potassium chloride originating in Belarus, Russia and Ukraine.
- 41.
GATT 1994, Annex I, Notes and Supplementary Provisions, Ad Article XVII, paragraph 1(a).
- 42.
GATT (1991), Services Sectoral Classification List, MTN.GNG/W/120.
- 43.
Appellate Body Report on China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisuals, WT/DS363/AB/R (Hereinafter China—Audiovisuals).
- 44.
Appellate Body Report on China—Audiovisuals, paragraph 397.
- 45.
Communication by the US and by Norway to the Council for Trade in Services in Special Session (S/CSS/W/24 and S/CSS/W/59, respectively).
- 46.
Appellate Body Report on China—Raw Materials, WT/DS 394/AB/R, WT/DS 395/AB/R, WT/DS 398/AB/R.
- 47.
Ibid, paragraphs 327–328.
- 48.
Appellate Body Report on United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R at paragraph 20 (Hereinafter US-Gasoline).
- 49.
Panel Report on China—Raw Materials, paragraphs. 7.377–7.381.
- 50.
Appellate Body Report on Brazil—Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R at paragraph 151 (Hereinafter Brazil—Retreaded Tyres).
- 51.
Appellate Body Report on Brazil—Retreaded Tyres, at paragraph 156.
- 52.
Appellate Body Report on United States—Measures Affecting Cross Border Supply of Gambling and Betting Services, WT/DS285/AB/R at paragraph 309 (Hereinafter US—Gambling).
- 53.
Appellate Body Report on US—Gasoline, at paragraph 14.
- 54.
Appellate Body Report on United States—Shrimp, WT/DS58/AB/R.
- 55.
Appellate Body Report on Panel Report on China—Raw Materials, at paragraph 360.
- 56.
Appellate Body Report on US—Gasoline, at paragraphs 20–21.
- 57.
Panel Report on China—Raw Materials, at paragraph 337.
- 58.
Appellate Body Report on US—Gasoline, at paragraph 13.
- 59.
Appellate Body Report on Report on US—Clove Cigarettes.
- 60.
Appellate Body Report on United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R (Hereinafter US—Tuna II (Mexico)).
- 61.
Appellate Body Report on United States—Certain Country of Origin Labeling (COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R (Hereinafter US—COOL).
- 62.
Article 31, SCM Agreement. The SCM Agreement as it originally entered into force contained a third category—non-actionable subsidies. This category applied provisionally for five years ending 31 December 1999, and pursuant to Article 31 of the Agreement, could be extended by consensus of the SCM Committee. As of 31 December 1999, no such consensus had been reached.
- 63.
WTO Negotiating Group on Rules (2008), Draft Consolidated Chair Texts of the Anti Dumping and SCM Agreement, TN/RL/W/236.
- 64.
WTO Committee on Agriculture, Special Session (2011), Report by the Chairman to the Trade Negotiations Committee, TN/AG/26.
- 65.
WTO Committee on Agriculture, Special Session (2008), Revised Draft Modalities for Agriculture, TN/AG/W/4/Rev.4.
- 66.
WTO Negotiating Group on Market Access (2011), Report by the Chairman on the State of Play of the NAMA Negotiations, TN/MA/W/103/Rev.3/Add.1.
- 67.
WTO Negotiating Group on Market Access (2008), Revised Draft Modalities for Non-Agricultural Market Access, TN/MA/W/103/Rev.3.
- 68.
Annex 5 of the 2008 Revised Draft Modalities for NAMA (TN/MA/W/103/Rev.3), includes the EC submission on export taxes.
- 69.
The core list drawn from JOB/TE/3/Rev.1 is listed in the annexed Table A.1. A group of Members identified, on an illustrative and starting-point basis, 26 tariff lines in the core list. Preliminary discussions showed that some of the goods included in this set could be considered by the membership as environmental goods, as long as they can be specifically identified in the HS classification by an ex-out or otherwise.
- 70.
Communication by the US and by Norway to the Council for Trade in Services in Special Session (S/CSS/W/24 and S/CSS/W/59, respectively).
- 71.
WTO CTS-SS (2011), Report by the Chairman of the CTS-SS, TN/S/26, paragraphs 26 and 27.
- 72.
WTO Negotiating Group on Trade Facilitation (2012), Draft Consolidated Negotiating Text: Revision, TN/TF/W/165/Rev.14.
- 73.
WTO Agreement on Trade Facilitation (2013), WT/MIN(13)/36 and WT/L/911 (available online at https://docs.wto.org/).
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Nedumpara, J.J. (2014). Energy Security and the WTO Agreements. In: Mathur, S. (eds) Trade, the WTO and Energy Security. Springer, New Delhi. https://doi.org/10.1007/978-81-322-1955-2_2
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