By

Abhinav Trehan
18LLM017
Facts
 Complaint filled by the United States against India.
 ISSUE
 Domestic content requirements (DCR measures)
imposed by India in the initial phases of India's
Jawaharlal Nehru National Solar Mission (NSM), on
solar power developers selling electricity to the
government is violative of Provision
Product Issue
 Solar cells and/or modules used to generate solar
power.
Cont…
 The United States claims that the measures appear to
be inconsistent with:
 Article III:4 of the GATT 1994;

 Article 2.1 of the TRIMs Agreement; and

 Articles 3.1(b), 3.2, 5(c), 6.3(a) and (c), and 25 of the

SCM Agreement.
Cont..
 The United States also claims that the measures
appear to nullify or impair the benefits accruing to the
United States directly or indirectly under the cited
agreements.
Panel and Appellate Body
proceedings

 At its meeting on 23 May 2014, the DSB established a

panel. Brazil, Canada, China, the European Union, Japan,
Korea, Malaysia, Norway, the Russian Federation and
Turkey reserved their third party rights. Subsequently,
Ecuador, Saudi Arabia and Chinese Taipei reserved their
third party rights. Following the agreement of the parties,
the panel was composed on 24 September 2014.
 On 24 March 2015, the Chair of the panel informed the
DSB that the panel expects to issue its final report to the
parties by late August 2015, in accordance with the
timetable adopted after consultation with the parties.
KEY PANEL FINDINGS
 The Appellate Body upheld the Panel's finding that
India's DCR measures were inconsistent with WTO
non-discrimination obligations under Art. III:4 and
Art. 2.1.
 The Appellate Body rejected India's claim that the
Panel acted inconsistently with DSU Art. 11 in
assessing India's arguments regarding the scope of
Art. III:8(a).
KEY PANEL FINDINGS
 The Appellate Body agreed with the Panel's finding
that India had not demonstrated that its measures
were justified under Art. XX(d).
 India neither demonstrated that the domestic
instruments being challenged set out a rule to ensure
ecologically sustainable growth, nor did it prove that
the international instruments identified fell within the
scope of Art. XX(d).
KEY PANEL FINDINGS
 The Appellate Body upheld the Panel's finding that
solar cells and modules were not “products in general
or local short supply” within the meaning of
Art. XX(j), and that the DCR measures were not
justified under this provision
Cont…
 On 20 April 2016, India notified the DSB of its decision
to appeal to the Appellate Body certain issues of law
and legal interpretation in the panel report.
 On 8 July 2016, the Appellate Body informed the DSB
that it expected to circulate its report in this appeal no
later than 16 September 2016.
Reasonable period of time
 On 8 November 2016, India informed the DSB that,
pursuant to Article 21.3 of the DSU, it intended to
implement the DSB's recommendations and rulings in
this dispute.
 On 16 June 2017, India and the United States informed
the DSB that they had agreed that the reasonable
period of time to implement the DSB's
recommendations and rulings would be 14 months.
Accordingly, the reasonable period of time was set to
expire on 14 December 2017
Cont..
 On 3 January 2018, India objected to the United States'
request pursuant to Article 22.6 of the DSU.
Implementation of adopted
reports

 On 14 December 2017, India informed the DSB that it

had ceased to impose any measures found inconsistent
with the DSB's findings and recommendations.
DSU (remedies)

 On 19 December 2017, the United States requested the

authorization of the DSB to suspend concessions or
other obligations pursuant to Article 22.2 of the DSU
on the grounds that India had failed to comply with
the DSB's recommendations and rulings within the
reasonable period of time.
 On 3 January 2018, India objected to the United States'
request pursuant to Article 22.6 of the DSU
Cont..
 On 23 January 2018, India requested the establishment
of a compliance panel pursuant to Article 21.5 of the
DSU.
 At its meeting on 9 February 2018, the DSB deferred
the establishment of a compliance panel