On 9 September 2016, India requested consultations with the United States concerning the measures and claims set out below. India's consultations request was made pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994), Article 8 of the Agreement on Trade-Related Investment Measures (TRIMs Agreement), and Articles 4, 7 and 30 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement).¹

Consultations were held on 16 and 17 November 2016 between India and the United States. These consultations failed to resolve the dispute.²

On 17 January 2017, India requested the establishment of a panel pursuant to Articles 4.7 and 6 of the DSU, Article XXIII of the GATT 1994, Articles 4.4 and 30 of the SCM Agreement, and Article 8 of the TRIMs Agreement.³ At its meeting on 21 March 2017, the Dispute Settlement Body (DSB) established a panel pursuant to the request by India, in accordance with Article 6 of the DSU.⁴

The Panel's terms of reference are the following:

To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by India in document WT/DS510/2 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.⁵

Brazil, China, the European Union, Indonesia, Japan, the Republic of Korea, Norway, the Russian Federation, the Kingdom of Saudi Arabia, Singapore, Chinese Taipei, and Turkey reserved their rights to participate in the proceedings as third parties.⁶

On 11 April 2018, India requested the Director‑General to determine the composition of the panel, pursuant to Article 8.7 of the DSU.⁷

On 24 April 2018, the Director‑General accordingly composed the panel as follows⁸:

Chairperson: Mr Alberto Juan Dumont

Members: Ms Penelope Jane Ridings

Mr Miguel Rodriguez Mendoza

On 15 May 2018, the Panel transmitted draft working procedures and a draft timetable to the parties. The Panel held an organizational meeting with the parties on 22 May 2018.

Following consultations with the parties, the Panel adopted its Working Procedures and timetable on 6 June 2018. Upon India's request and in line with the United States' comments thereon, these Working Procedures were amended on 27 June 2018, to extend the deadlines for submitting non-confidential summaries of the parties' submissions by aligning the due dates with the due dates for submitting integrated executive summaries.⁹ The Panel further amended its timetable on 31 January 2019, following consultations with the parties, in order to specify the dates for the final stages of the proceedings.

India and the United States submitted their first written submissions to the Panel on 26 June 2018 and 7 August 2018 respectively. India submitted a corrected version of its first written submission on 16 July 2018. The Panel also received third party written submissions from some of the third parties on 21 August 2018.¹⁰

The Panel held its first substantive meeting with the parties on 9 and 10 October 2018. A session with the third parties took place on the morning of 10 October 2018.

Following these meetings, the Panel sent written questions to the parties and third parties on 12 October 2018. The Panel received written responses from the parties and some of the third parties¹¹ on 20 October 2018.

The parties submitted their first integrated executive summaries on 6 November 2018. The third parties also submitted their integrated executive summaries on that day.¹²

The parties submitted their second written submissions on 27 November 2018.

The Panel held a second substantive meeting with the parties on 22 January 2019. Following this meeting, the Panel sent written questions to the parties on 25 January 2019. The Panel received written responses from the parties on 12 February 2019, and comments on each other's written responses on 26 February 2019.

The parties submitted their second integrated executive summaries on 5 March 2019.

On 8 March 2019, the Panel issued the draft descriptive part of its Report to the parties. The parties provided written comments on this document on 20 March 2019.

The Panel issued its Interim Report to the parties on 25 April 2019. The parties submitted written requests for the Panel to review precise aspects of the Interim Report on 9 May 2019, and on 23 May 2019 the United States submitted written comments on some of India's requests.

The Panel issued its Final Report to the parties on 6 June 2019.

On 7 August 2018, as part of its first written submission, the United States requested the Panel to make a preliminary ruling to exclude from the Panel's terms of reference four of the measures challenged by India.¹³

On 9 August 2018, the Panel provided the third parties with an opportunity to comment on the United States' request jointly with their third party written submissions. On 21 August 2018, the Panel received third party written submissions from some of the third parties addressing, inter alia, the preliminary issues raised by the United States.¹⁴

On 16 August 2018, India responded to the United States' preliminary ruling request.

On 20 August 2018, the Panel requested certain additional information and clarifications from India. On 23 August 2018, India responded to such request. On the same date, the United States commented on India's response to the United States' requests for a preliminary ruling.

On 27 September 2018, the Panel issued its preliminary ruling to the parties and the third parties, with an indication that the ruling would form an integral part of the Panel's report, subject to any editorial corrections. The Panel found that two of the measures challenged by India (the Los Angeles Manufacturing Credit Adder and Massachusetts Manufacturer Adder) do not fall within its terms of reference. The Panel also found that the two other measures challenged by India (the solar thermal and solar photovoltaic rebates under the Minnesota Solar Incentive Program) are within its terms of reference.¹⁵ The Panel's preliminary ruling is reproduced in Annex D-1 of this Report.

This section of the Report provides a descriptive overview of the factual aspects of the measures at issue in this dispute.

India identified 11 measures in its panel request, as follows:

1) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods under Renewable Energy Cost Recovery Incentive Payment Program ('RECIP') in the State of Washington";

2) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods under Self-Generation Incentive Program ('SGIP') in the State of California";

3) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods under Los Angeles Department of Water and Power's ('LADWP') Solar Incentive Program in the State of California";

4) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods under Montana Tax Incentive for Ethanol Production ('TIEP') in the State of Montana";

5) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods under Montana Tax Credit for Biodiesel Blending and Storage in the State of Montana";

6) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods through refund for Taxes paid on Biodiesel by Distributor or Retailer in the State of Montana";

7) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods under Connecticut Residential Solar Investment Program ('CRSIP') in the State of Connecticut";

8) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods through the Renewable Energy Credits in the State of Michigan";

9) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods through the Delaware Solar Renewable Energy Credits in the State of Delaware";

10) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods under Made in Minnesota Solar Incentive Program ('MSIP') in the State of Minnesota"; and

11) "Incentives granted and/or maintained contingent upon the use of domestic over imported goods under Massachusetts Clean Energy Centre's Commonwealth Solar Hot Water Program, ('CSHWP') in the State of Massachusetts".¹⁶

India's panel request also purports to cover, in respect of all the challenged measures, "any amendments, modifications, replacements, successor, and extensions thereto, and any implementing measure or any other related measures thereto".¹⁷

As noted above, we have found in our preliminary ruling that Measure 3 (Los Angeles Manufacturing Credit Adder) and Measure 11 (Massachusetts Manufacturer Adder) are outside our terms of reference. We do not cover those measures in the following description of the measures at issue.¹⁸

For ease of reference, as regards the measures at issue falling within our terms of reference, we use the following numbering and long and short titles, based on those used by India in its first written submission.¹⁹

We now turn to describe the pertinent factual aspects of each of these measures in detail.

The Washington Renewable Energy Cost Recovery Incentive Program (RECIP)²⁰ provides "incentive payments[s] based on production to offset the costs associated with the purchase of renewable energy systems … that generate electricity".²¹ Under the program, individuals, businesses, local government entities (other than entities in the light and power or gas distribution business²²), and participants in community solar projects²³ are eligible to receive annual payments for energy they produce through a customer-generated electricity renewable energy system.²⁴ These payments are paid out by the light and power business serving the area where the customer-generated electricity renewable energy system is located.²⁵ The light and power business is then entitled to a credit against its public utility taxes equal to the amount paid out in incentives, subject to certain conditions.²⁶ Participation by light and power businesses in RECIP is voluntary.²⁷ Between 2005 and 2017, the program was administered by the Washington Department of Revenue. In October 2017, program management, technical review, and tracking responsibilities of the Department of Revenue were transferred to the Washington State University extension energy program.²⁸

Within the context of the RECIP, additional incentives are provided to customer-generated electricity produced using solar inverters²⁹, solar modules³⁰, stirling converters³¹, or wind blades³² manufactured in Washington State.

In order to qualify for the Washington State additional incentive, relevant manufacturers must make a request to the Department of Revenue. Following a field visit to the manufacturing facilities, the Department of Revenue will approve or disapprove the manufacturer's certification of a product qualifying as "made in Washington" State.³³ In determining whether "a person combining various items into a single package is engaged in a manufacturing activity" in Washington State, the Department of Revenue considers various factors, no one of which is conclusive evidence of a manufacturing activity.³⁴

The amount of the incentive payment is calculated in two steps. First, the incentive payment rate must be determined by multiplying the relevant base rate³⁵ by the applicable "economic development factors".³⁶ Second, once the incentive payment rate has been calculated, the incentive payment is determined by multiplying the kilowatt-hours generated through the relevant renewable energy system by the incentive payment rate.³⁷

The "economic development factors" applied on the relevant base rate in order to determine the incentive payment rate are as follows:

The applicable economic development factors are added together if a renewable energy system has (i) both a module and an inverter manufactured in Washington State; (ii) both a stirling converter and an inverter made in Washington State; or (iii) both blades and an inverter made in Washington State.³⁸ For electricity produced using solar modules or stirlings manufactured out-of-state, no economic development factor is applied.

The Washington State additional incentive challenged by India is provided for in Section 82.16.110 to 82.16.130 of the Revised Code of Washington (RCW)³⁹, and Section 458-20-273 of the Washington Administrative Code (WAC)⁴⁰. Certain parts of Chapter 82.16 of the Revised Code of Washington were modified by Senate Bill 5939 in July 2017, following the establishment of the Panel.⁴¹ In particular, following our first substantive meeting with the parties, India brought to our attention Section 6(12) of the Senate Bill 5939, which adds a new section to Chapter 82.16 of the Revised Code of Washington.⁴² This new section, incorporated as Section 82.16.165, provides for "[a] made-in-Washington bonus rate … for a renewable energy system or a community solar project with solar modules made in Washington or with a wind turbine or tower that is made in Washington".⁴³ The extent to which this incentive is distinct⁴⁴ from the Washington State additional benefit identified by India in its panel request is unclear.⁴⁵ We discuss the relevance of this amendment to Chapter 82.16 of the Revised Code of Washington, if any, in further detail in our findings.

The California Self-Generation Incentive Program (SGIP) provides for the payment of financial incentives for the installation of qualifying new technologies that are installed to meet all or a portion of the electric energy needs of a facility.⁴⁶ It was approved by the California Public Utilities Commission and is administered by four investor-owned utilities, which issue a handbook from time to time establishing the policies and procedures of the SGIP.⁴⁷ Within the context of the SGIP, an additional incentive of 20% is provided to any retail electric or gas distribution customer (industrial, agricultural, commercial, or residential) of certain providers for the installation of eligible distributed generation resources "from a California Supplier"⁴⁸ or "manufactured in California".⁴⁹

The 2016 SGIP Handbook was replaced by the 2017 SGIP Handbook following the establishment of the Panel.⁵⁰ The 2017 SGIP Handbook introduced two main changes with respect to the measure at issue: (i) it replaced the "California Supplier"⁵¹ requirement with a "California Manufacturer" requirement, and (ii) it modified the specific renewable energy technology types eligible for the incentive.

The 2016 SGIP Handbook defines the term "California Supplier" as follows:

Any sole proprietorship, partnership, joint venture, corporation, or other business entity that manufactures eligible distributed generation resources in California and that meets either of the following criteria:

A. The owners or policymaking officers are domiciled in California and the permanent principal office, or place of business from which the supplier's trade is directed or managed, is located in California;

B. A business or corporation, including those owned by, or under common control of, a corporation, that meets all of the following criteria continuously during the five years prior to providing eligible distributed generation resources to a self-generation incentive program recipient:

· Owns and operates a manufacturing facility located in California that builds or manufactures eligible distributed generation resources.

· Is licensed by the state to conduct business within the state.

· Employs California residents for work within the state.⁵²

The 2017 SGIP Handbook establishes that, for distributed generation resources to qualify as manufactured in California, at least 50% of their capital equipment value must be manufactured by an approved "California Manufacturer".⁵³ The term "California Manufacturer" is defined as a manufacturer who: (i) operates a manufacturing facility in California; (ii) is licensed to conduct business in California; and (iii) is registered with a primary or secondary manufacturing North American Industry Classification System (NAICS) Code.⁵⁴

Under the 2016 SGIP Handbook, the term "eligible distributed generation resources" encompasses "distributed generation or Advanced Energy Storage (AES) technologies".⁵⁵ The 2017 SGIP Handbook refers, instead, to "generation equipment (Generator/Prime Mover and ancillary equipment) and energy storage equipment (storage medium -i.e. battery-, inverter, controller)."⁵⁶

The California Manufacturer Adder challenged by India is provided for in Section 379.6 of the California Public Utilities Code and developed in the relevant SGIP Handbook.⁵⁷

The Montana tax incentive is a program that provides a "tax incentive for the production of ethanol to be blended for ethanol-blended gasoline".⁵⁸ More specifically, it provides that "ethanol distributors", defined as "any person who, for the purpose of making ethanol-blended gasoline, engages in the business of producing ethanol for sale, use, or distribution"⁵⁹, may receive "tax incentives"⁶⁰ on ethanol⁶¹ produced "in Montana from Montana agricultural products, including Montana wood or wood products"⁶², where such ethanol⁶³:

a) is to be blended with gasoline for sale as an ethanol-blended gasoline⁶⁴ in Montana;

b) was exported⁶⁵ from Montana to be blended with gasoline for sale as ethanol-based gasoline; or

c) is to be used in the production of ethyl butyl ether for use in reformulated gasoline.

The incentive is also payable on ethanol made using non-Montana agricultural products "when Montana products are not available".⁶⁶

The incentive is available to a "facility" for six years from the date on which it begins producing ethanol, subject to certain administrative and documentary requirements.⁶⁷ It is payable at the rate of 20 cents per gallon of distilled ethanol that is 100% produced from Montana products. The amount of the incentive is reduced proportionately based on the amount of agricultural or wood products not produced in Montana.⁶⁸ However, to receive the incentive, the ethanol must be made from at least the following minimum percentages of Montana products⁶⁹:

a) 20% Montana product in the first year of production;

b) 25% Montana product in the second year of production;

c) 35% Montana product in the third year of production;

d) 45% Montana product in the fourth year of production;

e) 55% Montana product in the fifth year of production; and

f) 65% Montana product in the sixth year of production.

The Montana tax incentive is administered by the Montana Department of Transportation.⁷⁰ It is set out in Sections 15-70-502⁷¹, 15-70-503⁷², and 15-70-522 of the Montana Annotated Code.⁷³ Further details concerning the administration and implementation of the incentive, including with respect to the application form, are set out at Sections 18.15.701 to 18.15.703 and 18.15.710 to 18.15.712 of the Administrative Rules of Montana.

The Montana tax credit provides for an "individual, corporation, partnership, or small business corporation" to receive a "credit against [certain] taxes … for the costs of investments in depreciable property used for storing or blending biodiesel with petroleum diesel for sale".⁷⁴ The credit may be claimed for such costs "incurred in the 2 tax years before the taxpayer begins blending biodiesel fuel for sale, or in any tax year in which the taxpayer is blending biodiesel fuel for sale".⁷⁵ Any credit not used in the year in which it is received may be carried forward for up to seven years, subject to certain requirements.⁷⁶

Two categories of applicants are eligible to receive the credit: (i) special fuel distributors; and (ii) owners or operators of a motor fuel outlet. To be eligible for the credit, applicants must own, lease, or otherwise have a beneficial interest in a business that blends biodiesel.⁷⁷ The former category of applicant is eligible to receive a maximum tax credit in the amount of 15% of the costs of investments in depreciable property used for storing or blending biodiesel with petroleum diesel for sale, up to a total of USD 52,500. The latter category is eligible to receive a maximum tax credit in the amount of 15% of the relevant costs, up to a total of USD 7,500.⁷⁸

Importantly, a special fuel distributor or owner or operator of a motor fuel outlet will only be eligible to receive the tax credit if, inter alia⁷⁹, the investment in respect of which the credit is claimed is "used primarily to blend petroleum diesel with biodiesel made entirely from Montana-produced feedstocks".⁸⁰

The Montana tax credit is administered by the Montana Department of Revenue.⁸¹ It is set out in section 15-32-703 of the Montana Annotated Code.⁸²

The Montana tax refund establishes two tax refund programs.

First, it provides for "licensed distributors"⁸³ who pay a "special fuel tax"⁸⁴ on biodiesel⁸⁵ to receive a refund equal to two cents per gallon on biodiesel sold during the previous quarter if such biodiesel is "produced entirely from biodiesel ingredients produced in Montana".⁸⁶ The term "produced in Montana" is not further defined.

Second, it provides for "owners and operators of retail motor fuel outlets"⁸⁷ to receive a tax refund equal to one cent per gallon "on biodiesel on which the special fuel tax has been paid and that is purchased from a licensed distributor if the biodiesel is produced entirely from biodiesel ingredients produced in Montana".⁸⁸ Again, the term "produced in Montana" is not further defined.

The Montana tax refund is set out in section 15-70-433 of the Montana Annotated Code⁸⁹, and is administered by the Montana Department of Transportation.⁹⁰

The Connecticut Residential Solar Investment Program (CRSIP) is a "residential solar investment program" designed to "result in a minimum of three hundred megawatts of new residential solar photovoltaic installations".⁹¹ Specifically, it makes available, through the Connecticut Green Bank⁹², "direct financial incentives, in the form of performance-based incentives or expected performance-based buydowns, for the purchase or lease of qualifying residential solar photovoltaic systems".⁹³

Two types of financial incentives are available under the CRSIP: (i) performance-based incentives (PBI); and (ii) expected performance-based buydowns (EPBB).⁹⁴

The first type of incentive, PBI, is available to a homeowner who acquires a solar photovoltaic (PV) system under a third-party financing structure (i.e. by way of a lease or a power purchase agreement (PPA)), rather than by purchasing it. The PBI itself is not paid to the homeowner installing the PV system, but rather to the owner of the PV system (the System Owner) that is being leased. It is paid over the course of 24 calendar quarters⁹⁵, and is calculated based on actual production on a per-kilowatt-hour basis.⁹⁶ System Owners are expected to build the expected total PBI amount into the lease or PPA rate charged to the homeowner.⁹⁷ System Owners are required to use Eligible Contractors to install their systems. However, a System Owner may itself apply to be an Eligible Contractor.⁹⁸

The second type of financial incentive, EPBB, is available to a homeowner who purchases a solar PV system from an Eligible Contractor. The contractor is required to present the EPBB as an upfront cost reduction to the customer. The Connecticut Green Bank then issues the EPBB payment directly to the contractor upon completion of the installation.⁹⁹ Homeowners are required to work with Eligible Contractors to qualify for CRSIP incentives.¹⁰⁰

The incentives are paid at rates determined and published by the Connecticut Green Bank¹⁰¹, subject to necessary application formalities.¹⁰² PBI and EPBB payments cannot be combined for a single project under the CRSIP, and no homeowner purchasing a solar PV system (and therefore eligible to receive EPBB) is allowed to claim or receive PBI. Likewise, no System Owner offering third-party financing will be allowed to claim or receive an EPBB for the same project.¹⁰³

Within the context of the CRSIP, additional incentives of up to 5% of the ordinarily available incentive may be made available for the use of "major system components manufactured or assembled in Connecticut"¹⁰⁴, and another additional incentive of up to 5% of the ordinarily available incentive may be made available "for the use of major system components manufactured or assembled in a distressed municipality … or a targeted investment community".¹⁰⁵

The CRSIP, including the additional incentives challenged by India, is set out in section 16‑245ff of the General Statutes of Connecticut.¹⁰⁶

As a general matter, the CRSIP is administered by the Connecticut Green Bank.¹⁰⁷ However, Section 245ff(i) of the General Statutes of Connecticut indicates that the additional incentives available for use of major system components manufactured or assembled in Connecticut shall be "provide[d]" by the Public Utilities Regulatory Authority (PURA).¹⁰⁸ On the basis of legislation submitted by the parties, it is unclear whether the Green Bank is involved in the disbursement of these payments. Although Section 245ff(i) of the General Statutes of Connecticut does not mention the Green Bank, that provision is a subsection of Section 245ff, which establishes the CRSIP and does mention the Green Bank, charging it with "structur[ing]" and "implement[ing]" the CRSIP.¹⁰⁹

The Renewable Energy Standards Program in the State of Michigan (RESPM) comprises a range of regulations and programs designed to "promote the development of clean energy, renewable energy, and energy optimization through the implementation of a clean, renewable, and energy efficient standard".¹¹⁰

Inter alia, the RESPM requires "electric providers"¹¹¹ to "achieve a renewable energy credit portfolio" at levels specified by legislation.¹¹² A "renewable energy credit portfolio" consists of "the renewable energy credits achieved by a provider for a particular year".¹¹³ Subject to certain exceptions¹¹⁴, electric providers obtain renewable energy credits either by generating electricity from renewable energy systems for sale to retail customers, or by purchasing or otherwise acquiring renewable energy credits with or without the associated renewable energy.¹¹⁵

As a general rule¹¹⁶, electricity providers generate one renewable energy credit¹¹⁷ for each megawatt hour of electricity generated from each of their renewable energy systems.¹¹⁸ However, additional credits are provided to electricity providers in certain circumstances.¹¹⁹ Notably, electricity providers receive, in addition to the standard one credit for one megawatt hour of electricity generated by a renewable energy system:

a) 1/10 renewable energy credit for each megawatt hour of electricity generated from a renewable energy system constructed using equipment made in Michigan¹²⁰; and

b) 1/10 renewable energy credit for each megawatt hour of electricity from a renewable energy system constructed using a workforce composed of residents of Michigan.¹²¹

Additional details concerning the calculation of these additional benefits are contained in Michigan Case No. U-15800, Temporary Order.¹²² According to that document, the following rules apply in respect of electricity generated by a renewable energy system "constructed using equipment made in Michigan".

First, Michigan-made equipment is calculated by dividing the USD cost of all equipment and materials made (defined as manufactured or assembled) in the State of Michigan by the total USD cost of all equipment and materials used to construct the renewable energy system.

Second, the annual number of incentive credits granted to the owner of the renewable energy system is determined by multiplying the percentage calculated in step one above by the result of 1/10 multiplied by the number of MWhs produced by the renewable energy system in that year. 100% of the incentive credits are granted to the owner of the renewable energy system if the percentage calculated above equals or exceeds 50%.¹²³

The following principles apply in respect of electricity generated by a renewable energy system "constructed using a workforce composed of residents of Michigan".

First, Michigan labour is calculated by dividing the number of labour hours attributed to the construction (defined as in-field labour) of the renewable energy system performed by residents of the State of Michigan by the total labour hours attributed to the construction of the renewable energy system.

Second, the annual number of incentive credits granted to the owner of the renewable energy system is determined by multiplying the percentage calculated in step one above by the result of 1/10 multiplied by the number of MWhs produced by the renewable energy system in that year.¹²⁴ 100% of the credits are granted to the owner of the renewable energy system if the percentage calculated in accordance with the equation above equals or exceeds the following:

a) 60% for renewable energy systems with a commercial operation date from 6 October 2008 through 31 December 2012;

b) 65% for renewable energy systems with a commercial operation date from 1 January 2013 through 31 December 2014; or

c) 70% for renewable energy systems with a commercial operation of 1 January 2015 or after.

Following the Panel's establishment on 21 March 2017, Michigan Public Act No. 342, which amended and replaced Michigan Public Act No. 295, entered into force on 20 April 2017.¹²⁵ Michigan Public Act No. 342 contains the same rules as Michigan Public Act No. 295 concerning the availability of additional credits for renewable energy generated by a renewable energy system that is constructed using equipment made in Michigan or by a workforce composed of residents of Michigan.¹²⁶

The version of the RESPM in force at the time of the Panel's establishment was set out in Michigan Public Act No. 295. Following the Panel's establishment, the amended version of the RESPM entered into force, and is contained in Michigan Public Act No. 342.¹²⁷ The program is administered by the Michigan Public Services Commission.¹²⁸

The Delaware Renewable Energy Portfolio Standards Act (REPSA) provides that retail electricity suppliers and municipal electric companies must sell a certain percentage of electricity generated using "eligible energy resources" and solar photovoltaics. Compliance with these targets is tracked and verified through the use of "renewable energy credits" (REC)¹²⁹ and "solar renewable energy credits" (SREC)¹³⁰. RECs and SRECs are tradable instruments on an electronic market system.¹³¹

Within the context of REPSA, an additional 10% credit is provided to retail electricity suppliers¹³² towards meeting the renewable energy portfolio standards¹³³ for solar or wind energy installations sited in Delaware provided that: (i) a minimum of 50% of the cost of renewable energy equipment, inclusive of mounting components, are manufactured in Delaware (Delaware Equipment Bonus); or (ii) the facility is constructed or installed with a minimum of 75% in-state workforce (Delaware Workforce Bonus).¹³⁴ This means that workforce must consist of at least 75% Delaware residents or the installing company must employ in total a minimum of 75% workers who are Delaware residents.

The Delaware Public Service Commission verifies that the required percentages of manufacture and workforce in Delaware are met.¹³⁵ According to India, the Commission carries out the verification of the cost of the equipment based on the copy of the supplier's invoice which is required together with the "Application for Certification". The invoice must show Delaware manufactured equipment with the facility identified. If the supplier's invoice shows only a coded Purchase Order (PO) number, a copy of the company's matching PO that includes the address where the materials were used/installed must also be supplied. If a master invoice is submitted, a record of the draws against the purchased quantity, on the master invoice, must show the address of each use and the quantity of material used.¹³⁶

The Delaware Equipment and Workforce Bonuses, which can be added together¹³⁷, are provided for in Section 356(d) and (e) of the REPSA¹³⁸, and developed in the Rules and Procedures to Implement the Renewable Energy Portfolio Standard by the Delaware Public Service Commission.¹³⁹ The REPSA is administered by the Delaware Public Services Commission.

India refers to three programs under the general umbrella term "Minnesota Solar Incentive Program"¹⁴⁰:

a) performance-based financial incentives offered to owners of grid-connected solar photovoltaic (PV) modules if the solar PV modules qualify as "Made in Minnesota" (SEPI);

b) rebates offered for the installation of "Made in Minnesota" solar thermal systems (Minnesota solar thermal rebate); and

c) rebates offered to owners of a qualified property for installing solar PV modules manufactured in Minnesota (Minnesota solar PV rebate).

The Minnesota legislature repealed the first two programs, i.e. the SEPI, and the rebate program on the installation of solar thermal systems, on 22 May 2017, after the Panel was established.¹⁴¹ Payments of incentives pursuant to the SEPI are permitted until 31 October 2028.¹⁴² The parties disagree on whether rebate payments are ongoing under the Minnesota¹⁴³ solar thermal rebate.¹⁴⁴

The Minnesota solar energy production incentive (SEPI) is open to owners of grid-connected solar photovoltaic (PV) modules¹⁴⁵ of a total nameplate capacity of less than 40 kilowatts who submitted to the Commissioner of Commerce an application to receive the incentive that has been approved by the Commissioner and received a "Made in Minnesota" certificate for the module under section 216C.413 of the 2016 Minnesota Statutes. The solar PV modules certified as "Made in Minnesota" must have been installed on either residential¹⁴⁶ or commercial¹⁴⁷ premises and must generate electricity.¹⁴⁸

To receive the "Made in Minnesota" certificate by the Commissioner of Commerce, solar PV modules must:

a) be manufactured at a manufacturing facility located in Minnesota that is registered and authorized to manufacture and apply the UL 1703 certification mark to solar PV modules by Underwriters Laboratory (UL), CSA International, Intertek, or an equivalent UL-approved independent certification agency;

b) be manufactured in Minnesota by manufacturing processes that must include tabbing, stringing, and lamination; or by interconnecting low-voltage direct current photovoltaic elements that produce the final useful photovoltaic output of the modules; and

c) bear UL 1703 certification marks from UL, CSA International, Intertek, or an equivalent UL-approved independent certification agency, which must be physically applied to the modules at a manufacturing facility described in subparagraph a) above.¹⁴⁹

Incentive payments under this program are made only for electricity generated from new solar PV module installations commissioned between 1 January 2014 and 31 December 2023. An owner of solar PV modules may, in principle, receive payments under this program for a particular module for a period of ten years, provided that sufficient funds are available.¹⁵⁰

The SEPI is provided for in Sections 216C.411 – 216C.415 of the 2016 Minnesota Statutes.¹⁵¹

The Minnesota solar thermal rebate provides rebates upon the installation of solar thermal systems¹⁵² "Made in Minnesota" in residential or commercial premises.¹⁵³

For solar thermal systems to qualify as "Made in Minnesota", their components must be manufactured in Minnesota and the solar thermal system must be certified by the Solar Rating and Certification Corporation.¹⁵⁴

The rebates, which are granted by the Commissioner of Commerce following an application, vary depending on whether applications relate to a single family residential dwelling installation, a multiple family residential dwelling installation, or a commercial installation.¹⁵⁵ Section 216C.416 provides that, "[t]o the extent there are sufficient applications, the commissioner shall annually spend for rebates under this [program] from 2014 to 2023, for a total of ten years, approximately $250,000 per year."¹⁵⁶

The Minnesota solar thermal rebate is provided for in Section 216C.416 of the 2016 Minnesota Statutes.¹⁵⁷

The Minnesota solar photovoltaic (PV) rebate provides rebates to owners of qualified properties¹⁵⁸ who install¹⁵⁹ solar PV modules¹⁶⁰ manufactured in Minnesota after 31 December 2009.¹⁶¹

For solar PV modules to be considered as manufactured in Minnesota, the material production of solar PV modules, including the tabbing, stringing, and lamination processes must take place in Minnesota; or the production of interconnections of low-voltage photoactive elements that produce the final useful PV output must be carried out by a manufacturer operating in Minnesota on 18 May 2010.¹⁶²

To be eligible for this rebate:

a) A solar PV module must (i) be manufactured in Minnesota; (ii) be installed on a qualified property as part of a system whose generating capacity does not exceed 40 kilowatts; (iii) be certified by Underwriters Laboratory, must have received the ETL listed mark from Intertek, or must have an equivalent certification from an independent testing agency; and (iv) be installed, or reviewed and approved, by a person certified as a solar photovoltaic installer by the North American Board of Certified Energy Practitioners. In addition, the solar PV module (i) may or may not be connected to a utility grid; and (ii) may not be used to sell, transmit, or distribute the electrical energy at retail, nor to provide end-use electricity to an offsite facility of the electrical energy generator (on-site generation being allowed to the extent provided for in section 216B.1611)¹⁶³; and

b) An applicant must have applied for and received a rebate or other form of financial assistance available exclusively to owners of properties on which solar PV modules are installed, and provided by either the State of Minnesota or the utility company serving the applicant's property (unless the applicant's failure to receive the rebate or financial assistance was due to lack of funds).¹⁶⁴ However, the Minnesota solar energy production incentive (SEPI) does not count in this respect, as a person receiving the SEPI is not entitled to receive a Minnesota solar PV rebate for the same solar PV modules.¹⁶⁵

The amount of a rebate under this program is the difference between the sum of all rebates described in subparagraph b) above awarded to the applicant and $5 per watt of installed generating capacity.¹⁶⁶ The amount of all rebates or other forms of financial assistance awarded to an applicant by a utility or the State, including any rebate paid under this program (net of applicable federal income taxes applied at the highest applicable income tax rates) is capped at 60% of the total installed cost of the solar PV modules.¹⁶⁷

The Minnesota solar PV rebate is provided for in Section 116C.7791 of the 2016 Minnesota Statutes.¹⁶⁸

India requests that the Panel find that the measures at issue are inconsistent with the United States' obligations under the GATT 1994, the TRIMs Agreement, and the SCM Agreement. India further requests, pursuant to Article 19.1 of the DSU, that the Panel recommend that the United States bring its measures into conformity with its WTO obligations.¹⁶⁹

The United States requests the Panel to find that India has failed to meet its burden to show that the measures at issue are inconsistent with the provisions of the GATT 1994, the TRIMs Agreement, and the SCM Agreement cited by India.¹⁷⁰

The arguments of the parties are reflected in their executive summaries, submitted in accordance with paragraph 23 of the Panel's Working Procedures (see Annexes B‑1 and B-2).

The arguments of Brazil, China, the European Union, Japan, and Norway are reflected in their executive summaries, provided in accordance with paragraph 26 of the Working Procedures adopted by the Panel (see Annexes C-1, C-2, C-3, C-4, and C-5). Indonesia, the Republic of Korea, the Russian Federation, the Kingdom of Saudi Arabia, Singapore, Chinese Taipei, and Turkey did not submit written or oral arguments to the Panel.

The Panel issued its Interim Report to the parties on 25 April 2019. On 9 May 2019, both parties submitted written requests for the Panel to review precise aspects of the Interim Report, and neither party requested an interim review meeting. On 23 May 2019, the parties submitted written comments on each other's written requests for review. The parties' requests, made at the interim review stage, as well as the Panel's discussion and disposition of these requests are set out in Annex E-1.

Before proceeding to the substance of India's claims, we address a threshold issue arising from the fact that several instruments underlying the measures challenged by India in this dispute were amended or repealed following the establishment of this Panel on 21 March 2017.

Specifically, Measures 1 (Washington State additional incentive), 2 (California Manufacturer Adder) and 8 (Michigan Equipment Multiplier and Michigan Labour Multiplier) have been amended.¹⁷¹ Additionally, two of the three programs identified by India under Measure 10, namely the Minnesota solar energy production incentive (SEPI) and the Minnesota solar thermal rebate, were repealed following the Panel's establishment.¹⁷²

In light of these changes, India requested that we make findings and recommendations on the amended versions of Measures 1 and 8¹⁷³; on both the original and amended version of Measure 2¹⁷⁴; and on the two repealed programs under Measure 10.¹⁷⁵ While the United States does not object to the Panel considering either Measure 8 as amended or the two repealed programs under Measure 10¹⁷⁶, it has submitted that the amended versions of Measures 1 and 2 do not fall within the Panel's terms of reference.

These circumstances raise the following questions: are the amended measures (i.eMeasures 1, 2, and 8), on the one hand, and the repealed programs (under Measure 10), on the other hand, within our terms of reference¹⁷⁷; and can or should we make findings and recommendations on these amended measures and repealed programs?¹⁷⁸ Additionally, with respect to the amended measures, should we also make findings and recommendations on these measures as they existed at the time the Panel was established? We will examine these questions separately in respect of the amended measures (Measures 1, 2, and 8) and the two repealed programs under Measure 10.

To better understand India's position in respect of Measures 1, 2, and 8, we asked India to explain the legal basis for its request that the Panel examine the WTO-consistency of these measures as amended following panel establishment. In response, India explained that past panels have made findings on measures amended following panel establishment where a panel's terms of reference were broad enough to encompass the amendments, the amendments did not change the essence of the challenged measure, and addressing the amended measure as amended was necessary to resolve the dispute.¹⁷⁹ In support of this proposition, India relies on the panel report in EC – IT Products.¹⁸⁰ According to India, applying these criteria in the present dispute leads to the conclusion that the amendments to Measures 1, 2, and 8 are within the Panel's terms of reference. India also submits that the United States has not contested the Panel's ability to make findings on the measures as amended.¹⁸¹

In its comments on India's responses to our questions, the United States indicated its disagreement with India's position that we can or should examine the WTO-consistency of measures amended after the Panel's establishment. According to the United States, "the measures within a panel's terms of reference are defined by the complainant's panel request, and the relevant time for defining the measures within the panel's terms of reference is the time of the DSB's establishment of the panel".¹⁸² In the United States' view, "nothing in the text of Articles 6.2 or 7.1 of the DSU supports the view that measures enacted after the date of panel establishment (including amendments) are within a panel's terms of reference", "[n]or has India identified any other text in the DSU that would otherwise support such a view".¹⁸³ The United States adds that India's reference to what is necessary to secure a positive solution to the dispute is misplaced, as nothing in Article 6.2 or 7.1 of the DSU "suggests that a panel may review a measure that otherwise falls outside of its terms of reference … because – in the view of the complaining Member – doing so is necessary to secure a positive solution to the dispute".¹⁸⁴ Additionally, the United States argues that the "certain reports" relied upon by India are "not persuasive", because they did "not start with or even consider the relevant text of the DSU".¹⁸⁵ On the basis of these considerations, the United States submits that we should only review the WTO-consistency of measures that existed at the time of panel establishment.¹⁸⁶

Neither party has engaged in detail with past cases that have dealt with the issue of a panel's jurisdiction over measures amended after panel establishment. India's argumentation on this specific issue cites one panel report¹⁸⁷, whereas the United States' mentions – generally and without any specific references – "certain reports" that, in the United States' view, are "not persuasive".¹⁸⁸

There are, however, several relevant past cases that, in our view, provide guidance on the issue before us. Indeed, although "[a]s a general rule, the measures included in a panel's terms of reference must be measures in existence at the time of the establishment of the panel "¹⁸⁹, the Appellate Body has indicated that "Article 6.2 does not set out an express temporal condition or limitation on the measures that can be identified in a panel request"¹⁹⁰: "measures enacted subsequent to the establishment of the panel may, in certain limited circumstances, fall within a panel's terms of reference".¹⁹¹

In this connection, we recall that in Chile – Price Band System, the Appellate Body stated that:

If the terms of reference in a dispute are broad enough to include amendments to a measure—as they are in this case—and if it is necessary to consider an amendment in order to secure a positive solution to the dispute—as it is here—then it is appropriate to consider the measure as amended in coming to a decision in a dispute.¹⁹²

Additionally, in EC – Selected Customs Matters, the Appellate Body explained that "a panel has the authority to examine a legal instrument enacted after the establishment of the panel that amends a measure identified in the panel request, provided that the amendment does not change the essence of the identified measure".¹⁹³

These basic principles – that a panel has jurisdiction to examine amendments made to measures in existence at the time of panel establishment if (i) the terms of reference are broad enough to include such amendments; (ii) the amendments do not change the essence of the measures identified in the panel request; and (iii) such examination is necessary to secure a positive solution to the dispute – have also been applied by several panels, including in EC – IT Products¹⁹⁴ and China – Raw Materials.¹⁹⁵

Therefore, we are of the view that India's statement of the applicable principles concerning a panel's jurisdiction over measures amended after panel establishment is supported by several panel and Appellate Body reports.

As noted above¹⁹⁶, the United States argues that India has relied on "certain reports" which, in the United States' view, are not persuasive because they did not "start with or even consider the relevant text of the DSU".¹⁹⁷ However, as also noted above, the notion that a panel may, in certain circumstances, examine the WTO-consistency of an amended measure subsequent to panel establishment is supported not only by the EC – IT Products panel report cited by India, but by several other reports, including Appellate Body reports, which either explicitly or implicitly base their findings on DSU provisions, including Articles 3 and 6.2.

Indeed, when assessing whether amendments to measures identified in the panel request fall within a panel's terms of reference, both panels and the Appellate Body have found guidance in the requirement in Article 6.2 of the DSU that the panel request identify the "specific measures at issue".¹⁹⁸ Further, in some instances, both panels and the Appellate Body have reviewed this issue in light of the principles and objectives in Article 3 of the DSU.¹⁹⁹

We therefore disagree with the United States' argument that past cases are not persuasive because they did not "start with or even consider the relevant text of the DSU".²⁰⁰ Accordingly, and since the United States has not further clarified why it considers that certain reports are "not persuasive", we see no reason to depart from the relevant guidance summarized above.

Therefore, in considering whether we can and should assess the WTO-consistency of Measures 1, 2, and 8 as amended, we will have regard to whether (i) the terms of India's panel request are broad enough to cover the measures as amended; (ii) the amendments in question change the essence of the measures as identified in India's panel request; and (iii) whether assessing the measures as amended is necessary to secure a positive solution to the dispute.

As an additional and closely related issue, we note that, even if an amendment falls within a panel's terms of reference, the panel retains jurisdiction over the measure as it existed at the time of panel establishment.²⁰¹ In principle, therefore, a panel with jurisdiction over amended measures could address the measure as they existed at the time of panel establishment as well. The question of which version or versions of an amended measure a panel addresses, and the precise recommendations that it makes, will depend first and foremost on the complainant's specific request²⁰² and on what is necessary to secure a positive solution to the dispute.²⁰³

Senate Bill 5939 of July 2017²⁰⁴ amended certain parts of Chapter 82.16 of the Revised Code of Washington (RCW) following the establishment of the Panel.

India argues that these amendments to Chapter 82.16 of the RCW "do not impact India's claims"²⁰⁵ and fall "within the terms of reference of the Panel"²⁰⁶ for two reasons. First, in India's view, the amendments do not "'change the essence' of the original measure"; and second, according to India, India's panel request is "broad enough to include any subsequent amendments, replacements, or extensions thereto".²⁰⁷ India requests the Panel to make both findings and recommendations on the measure as amended in 2017, including on the 'made in Washington' bonus introduced by the amendment and codified in RCW 82.16.165²⁰⁸, since, in its view, such findings and recommendations are necessary to achieve a positive solution to the dispute.²⁰⁹ India does not specifically request that we make findings and recommendations on the original version of Measure 1.

The United States responds that Measure 1 as amended is not within the Panel's terms of reference because it did not exist at the time of the Panel's establishment. In the United States' view, it follows that "there is no basis for the Panel to issue legal findings or recommendations with respect to" the amended measure.²¹⁰ In respect of the factual aspects of the amendment, the United States observes that Senate Bill 5939 "reduced the level of incentives previously available under RECIP".²¹¹

In order to determine whether we should assess the WTO-consistency of the Washington State additional incentive as amended by Senate Bill 5939, we will examine (i) whether India's panel request is broad enough to encompass the relevant amendment; (ii) whether there has been any change in the essence of the measure at issue as a result of the amendment; and (iii) whether our findings and, if relevant, recommendations are necessary to secure a positive resolution to the dispute. We will do so by looking at Sections 82.16.110 - 82.16.130 of the RCW as amended by Senate Bill 5939, followed by Section 82.16.165 of the RCW which was introduced by Senate Bill 5939.

We consider that India's panel request is broad enough to encompass the amendments to Sections 82.16.110 - 82.16.130 of the RCW introduced by Senate Bill 5939. In fact, although India's panel request does not reference Senate Bill 5939, which was adopted only at a later stage, it explicitly identifies as part of Measure 1 "any amendments, modifications, replacements, successor, and extensions thereto, and any implementing measure or any other related measures thereto".²¹²

With respect to the essence of the measure at issue, we note that although the United States submits that Senate Bill 5939 "reduced the level of incentives previously available under RECIP"²¹³, the key subsection of the original measure providing for the economic development factors under the additional incentive remains unchanged.²¹⁴ The changes to Section 82.16.120 introduced by Senate Bill 5939 relate to other subsections and mostly concern administrative issues, such as the transfer of certain responsibilities from the Washington Department of Revenue to the Washington State University extension energy program²¹⁵, the deadline for participants in the RECIP to receive payments²¹⁶, and the establishment of certain procedures to manage the payment of incentives.²¹⁷ As these amendments did not change the essential design or operation of the incentive in question, we do not consider that the amendment effected by Senate Bill 5939 changed the essence of the measure as contained in Sections 82.16.110 - 82.16.130 of the RCW.

As regards the need to make findings and recommendations in order to ensure a positive solution to this dispute, we note that Sections 82.16.110 - 82.16.130 of the RCW, as amended by Senate Bill 5939, embody the version of the measure that is currently in force, and therefore the version of the measure to which any meaningful findings of WTO-inconsistency and concomitant recommendations would need to be directed, and in respect of which such findings and recommendations would need to be implemented. We also recall that India requests us to make findings and recommendations only on the measure as amended in 2017.²¹⁸ Accordingly, we conclude that addressing the WTO-consistency of Sections 82.16.110 - 82.16.130 of the RCW as amended by Senate Bill 5939 is necessary to ensure a positive solution to this dispute, and hence it is appropriate for us to make findings and recommendations on these Sections as amended.

Turning to the question of whether we should make findings and recommendations on the original version of Sections 82.16.110 - 82.16.130 of the RCW as they existed at the time of panel establishment, we note that India has not specifically requested us to do so.²¹⁹ Further, as noted above, the key subsection of the original measure providing for the economic development factors under the additional incentive remains unchanged. Accordingly, any findings or recommendations on Sections 82.16.110 - 82.16.130 of the RCW as amended would necessarily address the WTO‑consistency of the additional incentive at issue, including as set forth prior to Senate Bill 5939. Findings on the original version of Sections 82.16.110 - 82.16.130 of the RCW would therefore be duplicative and hence unnecessary to secure a positive solution to this dispute.

As noted above²²⁰, India has also requested us to make findings and recommendations on the 'made-in-Washington' bonus set out in 82.16.165 of the RCW, which it considers to be part of Measure 1 as amended.²²¹ India argues that Section 82.16.165 of the RCW falls within our terms of reference because it provides incentives "similar to RCW 82.16.120 in terms of their design and structure and the manner in which they operate and are mere extensions of the original measure".²²² India explains that the key differences relate to the scope of products subject to the incentive²²³, the incentive rates and calculation methods²²⁴, and the entity providing the certification.²²⁵ In India's view, "[t]he analysis presented by India with respect to [M]easure 1 as it existed at time of the establishment of the Panel also applies to and covers, mutatis mutandis, RCW 82.16.165 read with WAC 504-49".²²⁶

The United States is silent on Section 82.16.165 of the RCW introduced by Senate Bill 5939. The United States merely refers to Senate Bill 5939 in general, stating that "[a]s a factual matter, [Senate] Bill [] 5939 reduced the level of incentives previously available under RECIP".²²⁷

We do not exclude that the "made in Washington" bonus may be similar in some respects to the Washington State additional incentive. However, we consider that the two incentives are distinct from each other. Indeed, the text of Section 82.16.165(3)(a) indicates that the two incentives preclude each other, as "[n]o new certification may be issued under this section to an applicant who submits a request for or receives an annual incentive payment for a renewable energy system that was certified under RCW 82.16.120 …".²²⁸ We also note that the Washington State additional incentive and the "made in Washington" bonus are stipulated in different provisions of Chapter 82.16 of the RCW. They have different product coverage and calculation methods²²⁹, and became operative at different times.²³⁰ In our view, these considerations indicate that the "made in Washington" bonus is not a "mere extension[] of the original measure"²³¹, as India argues, but a distinct incentive resulting from the several amendments to Chapter 82.16 introduced by Senate Bill 5939.

Accordingly, we conclude that the "made in Washington" bonus is not an amendment to the Washington State additional incentive but a distinct measure introduced by Senate Bill 5939 following the establishment of the Panel and, therefore, falls outside our terms of reference. We therefore see no basis to examine further whether we need to issue findings and recommendations on the "made in Washington" bonus.

As noted above²³², the California Manufacturer Adder that India challenges is provided for in Section 379.6 of the California Public Utilities Code (CPUC). Rules and procedures concerning its implementation and administration are set out in the relevant California Self-Generation Incentive Program (SGIP) Handbook. The 2016 version of the SGIP Handbook was replaced by the 2017 SGIP Handbook of 18 December 2017, following the establishment of the Panel.

India argues that "the discriminatory element (through local content requirements) of the measure in question continues to be retained in 2017 SGIP Handbook".²³³ According to India, "the only difference [between the 2016 and the 2017 SGIP Handbook], for the purposes of the dispute, is that the 'California Supplier' requirement under the 2016 SGIP Handbook has been replaced by 'California Manufacturer' requirement under the 2017 SGIP Handbook".²³⁴ India considers that "the relevant parent legislation[] together with the handbooks constitute a 'series of measures' or successors in series and the Panel should issue findings and recommendations on the 'series of measures' taken together".²³⁵

The United States responds that Measure 2 as amended is not within the Panel's terms of reference because it did not exist at the time of panel establishment and, therefore, "there is no basis for the Panel to issue legal findings or recommendations with respect to" it.²³⁶

In light of India's arguments, we understand India's request for findings and recommendations to encompass the relevant parent legislation, i.e. Section 379.6 of the CPUC, as well as both the 2016 SGIP Handbook and the 2017 SGIP Handbook.²³⁷ In deciding whether to assess the WTO-consistency of the California Manufacturer Adder as implemented through the 2016 or the 2017 SGIP Handbook, or both, we will examine three issues: (i) whether India's panel request is broad enough to encompass the relevant amendment; (ii) whether there has been any change in the essence of the measure at issue as a result of the replacement of the 2016 SGIP Handbook by the 2017 SGIP Handbook; and (iii) whether findings and, if relevant, recommendations are necessary to secure a positive resolution to the dispute.

We consider that India's panel request is broad enough to encompass the replacement of the 2016 SGIP Handbook by the 2017 SGIP Handbook. In fact, although India's panel request does not refer to the 2017 SGIP Handbook, which was published only at a later stage, it explicitly identifies as part of Measure 2 "any amendments, modifications, replacements, successor, and extensions thereto, and any implementing measure or any other related measures thereto".²³⁸

With respect to the essence of the measure at issue, we note that, even though the 2017 SGIP Handbook provides for a different product coverage and replaces the California Supplier requirement of the 2016 SGIP Handbook with a California Manufacturer requirement²³⁹, the 2017 SGIP Handbook does not modify the key features of the California Manufacturer Adder. Indeed, there continues to be an additional incentive of 20% for the installation of eligible distributed generation resources manufactured in California, as stipulated in Section 379.6 of the CPUC. In fact, we note that the text of Section 379.6 of the CPUC remains identical after the replacement of the 2016 SGIP Handbook with the 2017 version. As the changes introduced by the 2017 SGIP Handbook did not modify the essential design or operation of the California Manufacturer Adder, we do not consider that the essence of this measure at issue was changed.

As regards the need to make findings and recommendations in order to ensure a positive solution to this dispute, we note that the California Manufacturer Adder, as implemented through the 2017 SGIP Handbook, is the version of the measure currently in force, and therefore the version of the measure to which any meaningful findings of WTO-inconsistency and concomitant recommendations would need to be directed, and in respect of which such findings and recommendations would need to be implemented. We also recall that India requests us to make findings and recommendations on the relevant parent legislation, i.e. Section 379.6 of the CPUC, as well as the 2016 SGIP Handbook and the 2017 SGIP Handbook.²⁴⁰ Accordingly, we conclude that addressing the WTO-consistency of California Manufacturer Adder as implemented through the 2017 SGIP Handbook is necessary to ensure a positive solution to this dispute, and hence it is appropriate for us to make findings and recommendations on this measure as amended.

Turning to the question of whether we should also make findings and recommendations on the California Manufacturer Adder as implemented through the 2016 SGIP Handbook, that is, as it existed at the time of panel establishment, we first note that India has requested us to do so.²⁴¹

We also recall that one of the criteria past panels have invoked in deciding whether to issue findings and recommendations on the version of a measure that existed at the time of panel establishment has been if that version of the measure continues to impair a Member's benefits under a covered agreement.²⁴²

To explore this issue, we asked the parties to clarify whether the 2016 SGIP Handbook continued to have an effect following its replacement by the 2017 SGIP Handbook.²⁴³ The United States did not address this issue. For its part, India submitted that the 2017 SGIP Handbook addresses the issue of migration from one Handbook to the other under the California Manufacturer Adder as follows:

Beginning June 23, 2017, Program Administrators will deny requests for California Manufacturer status for manufacturers that have not met the above requirements, including suppliers which were previously approved. Also, beginning June 23, 2017, projects will receive the adder only when using equipment from an approved California Manufacturer under the above requirements. New projects that apply before June 23, 2017 with a previously approved "California Supplier" may retain the adder only if that manufacturer is re-approved under the above requirements by the Incentive Claim stage.²⁴⁴

We understand from the above that, beginning 23 June 2017, manufacturers applying for California Manufacturer status as well as previously approved "California Supplier[s]" under the 2016 SGIP Handbook will have to fulfil the requirements set out in the 2017 SGIP Handbook if they want to start or continue benefiting from the California Manufacturer Adder. This raises the prospect that while incentives are being made available under the 2017 SGIP Handbook, some benefits may continue to flow from the 2016 SGIP Handbook.

India has thus demonstrated that the 2016 SGIP Handbook may continue to be operative in certain circumstances. Bearing in mind our duty to secure a positive solution to the dispute, we conclude that addressing the WTO-consistency of the California Manufacturer Adder as implemented through the 2016 SGIP Handbook is also necessary to ensure a positive solution to this dispute. Therefore, it is appropriate for us to make findings and recommendations on the California Manufacturer Adder as it existed at the time of panel establishment.

The Michigan Equipment Multiplier and the Michigan Labour Multiplier were contained in Act No. 295 of 2008 at the time the Panel was established.²⁴⁵ This Act was amended by Act No. 342 of 2016²⁴⁶ on 21 December 2016. The text of Public Act No. 342²⁴⁷ indicates that the law was "[a]pproved by the Governor" of Michigan on 21 December 2016, prior to panel establishment. However, it also states that the legislation's "effective date" is 20 April 2017, after the Panel was established. We understand, therefore, that although Public Act No. 342 was formally enacted prior to panel establishment on 21 March 2017, it was not yet in force on that date. Instead, on 21 March 2017, Public Act No. 295 remained in operation.

As noted above²⁴⁸, India requests us to make findings on the amended version of the Michigan Equipment and Labour Multipliers, as contained in Michigan Public Act No. 342.²⁴⁹

For its part, the United States "does not dispute that the amended version of Measure 8 is properly within the Panel's terms of reference" because, in the United States' view, the amended version of the measure was enacted prior to panel establishment, even though it only entered into force after that date.²⁵⁰

We note that, as the United States recognizes, the amendment to Measure 8 was enacted prior to the Panel's establishment, but only entered into force after that date. It is, therefore, not entirely clear to us whether Measure 8 should properly be understood as having been amended before or after the Panel's establishment. On the one hand, it could be argued that, insofar as the legislation was enacted prior to establishment, it was "in existence"²⁵¹ on that date, even if it was not yet in force. On the other hand, it might be thought that, because the amendment only entered into force after the Panel's establishment, it did not exist on that date. In this view, the measure "in existence" at the time of the Panel's establishment would be the original version of the measure contained in Public Act No. 295.

Ultimately, however, we do not consider it necessary in this case to resolve this issue or to determine whether Public Act No. 342 was in existence at the time the Panel was established. This is because even if Public Act No. 342 was not in existence when the Panel was established, it clearly falls within our terms of reference on the basis of the three principles set out above. As regards the scope of India's panel request, we note that while that document does not reference Public Act No342, which entered into force only at a later stage, it explicitly identifies as part of Measure 8 "any amendments, modifications, replacements, successor, and extensions thereto, and any implementing measure or any other related measures thereto".²⁵² In our view, India's panel request is therefore broad enough to encompass Public Act No. 342, which in effect "replaces" and succeeds, without changing, the provisions relating to the two Multipliers originally contained in Public Act No295.

With respect to the essence of the measure at issue, the relevant text in Public Act No. 295 establishing the Equipment and Labour Multipliers is repeated word for word in Public Act No. 342, without modification. We therefore, see no basis to conclude that Public Act No. 342 changed the essence of the two Multipliers in any way.

As regards the need to make findings and recommendations in order to ensure a positive solution to this dispute, we note that Public Act No. 342 is the version of the measure currently in force, and therefore the version of the measure to which any findings of WTO-inconsistency and concomitant recommendations would need to be directed, and in respect of which such findings and recommendations would need to be implemented. We also recall that India requests us to make findings and recommendations only on Public Act No. 342, and that the United States does not object to this.²⁵³ Accordingly, we conclude that addressing the WTO-consistency of the two Multipliers as contained in Public Act No. 342 is necessary to ensure a positive solution to this dispute, and hence that it is appropriate for us to make findings and recommendations on these Multipliers as set forth in Public Act No. 342.

Turning to the question of whether we should make findings and recommendations on the version of the measure (i.e. Public Act No. 295) that applied at the time of panel establishment, we note that India has not requested us to do so. Further, as noted above, the relevant parts of Public Act No. 342 reproduce exactly the relevant parts of Public Act No. 295, and thus, any findings on the former would necessarily clarify the WTO-consistency of the latter. Therefore, we conclude that findings or recommendations on the two Multipliers as contained in Public Act No. 295 would be duplicative and hence unnecessary to secure a positive solution to this dispute.

Accordingly, we will review the WTO-consistency of, and make findings and, if relevant, recommendations on, the two Multipliers as contained in Public Act No. 342, and not on the original version of these two Multipliers as contained in Public Act No. 295.

For the foregoing reasons, we will examine Measures 1, 2, and 8 as amended.

We have explained that, in our view, an examination of Measures 1 and 8 as they were in force at the time the Panel was established would be duplicative and unnecessary, especially bearing in mind our duty to secure a positive resolution to this dispute and the fact that India has not requested us to conduct such examination. Accordingly, we will make findings and, depending on our findings, also recommendations only on the amended versions of Measures 1 and 8.

Conversely, as regards Measure 2, and in light of both India's request and the possibility that benefits under the 2016 SGIP Handbook continue to exist in certain circumstances, we find it necessary to examine the California Manufacturer Adder as implemented through both the 2016 and 2017 SGIP Handbooks in order to secure a positive resolution to this dispute. Accordingly, we will make findings on both the original and the amended versions of Measure 2. Further, depending on our findings, we will make recommendations on the California Manufacturer Adder as implemented through the 2017 SGIP Handbook, and – to the extent the 2016 SGIP Handbook continues to govern certain aspects of the California Manufacturer Adder for past applicants – also as implemented through the 2016 SGIP Handbook.

We now turn to consider whether we can and should make findings and recommendations in respect of the Minnesota solar energy production incentive (SEPI) and the Minnesota solar thermal rebate, two programs identified by India as part of Measure 10 that were repealed following the Panel's establishment.

As we explained in our preliminary ruling²⁵⁴, EU – PET (Pakistan) is the most recent Appellate Body report addressing a panel's role in respect of expired or repealed measures. That report distinguishes between two different scenarios depending on whether measures expire or are repealed before or after panel establishment. We are faced here with the second situation since, as noted above²⁵⁵, the Minnesota solar energy production incentive (SEPI) and the Minnesota solar thermal rebate were repealed after the Panel was established.

In EU – PET (Pakistan), the Appellate Body considered, in respect of measures that have expired or been repealed following panel establishment, that "[t]he fact that a measure has expired is not dispositive of the question of whether a panel can address claims with respect to that measure".²⁵⁶ Rather, according to the Appellate Body, "where a measure expires in the course of the panel proceedings, the panel should, in the exercise of its jurisdiction, objectively assess whether the 'matter' before it, within the meaning of Article 7.1 and Article 11 of the DSU, has been fully resolved or still requires to be examined".²⁵⁷ In this regard, the Appellate Body emphasized that "the repeal of a measure [does not] necessarily constitute[], without more, a 'satisfactory settlement of the matter' within the meaning of Article 3.4 [of the DSU], or a 'positive solution to the dispute' within the meaning of Article 3.7" of the DSU.²⁵⁸

As we understand it, then, the fact that a measure was repealed after panel establishment does not, by itself, answer the question of whether a panel should make findings on that measure. Rather, the central question is whether there remains an unresolved "matter" that needs to be addressed in order to provide a positive solution to the dispute.

When might a "matter" continue to exist notwithstanding the repeal of a challenged measure? Past cases provide some guidance on this issue. One of the central considerations is whether the effects of a measure continue to impair the benefits for a Member under a covered agreement.²⁵⁹ In light of the parties' arguments, we will have regard to this factor in assessing whether to make findings on the two repealed programs under Measure 10.

Turning to the issue of recommendations, we note that the expiry of a measure may affect whether a panel can make recommendations and, if so, the kind of recommendations it makes.²⁶⁰ Depending on the circumstances, it may or may not be appropriate for a panel that has made findings on a measure that was repealed after panel establishment to make recommendations in respect of that measure.²⁶¹ Indeed, the Appellate Body has held that it may amount to legal error for a panel to recommend that a Member bring into conformity a measure that the Panel has found to have been repealed.²⁶² In our view, therefore, a panel's decision whether to make recommendations in respect of a repealed measure must depend on a careful examination of the nature of the subsisting "matter", and whether there are concrete actions or steps that a respondent could take, beyond repeal, to ensure that the repealed measure is no longer impairing benefits accruing to a Member under the covered agreements.

Bearing these considerations in mind, we now turn to examine whether we can and should examine the WTO-consistency of the SEPI and the Minnesota solar thermal rebate, even though both programs were repealed after the Panel was established.

As noted above²⁶³, the Minnesota legislature repealed the Minnesota solar energy production incentive program on the installation of solar photovoltaic (PV) modules (SEPI) on 22 May 2017, after the Panel was established.²⁶⁴

India requests that we nonetheless issue both findings and recommendations on this program, arguing that "the measure continues to be in operation and has an ongoing effect".²⁶⁵ India recalls in this regard that the SEPI explicitly provides that "[w]hile the last date for approval of an application for SEPI was fixed at May 1, 2017, the incentives payment may continue up to 10 years".²⁶⁶

The United States does not explicitly address India's request for findings and recommendations with respect to this program; it merely asserts that "[it] does not dispute that those measures were in existence on the date of panel establishment".²⁶⁷ Moreover, the United States does not contest that "[o]wners whose applications were approved by May 22, 2017, are eligible to receive annual incentive payments under the Minnesota Solar Energy Production Incentive for a period of ten years from the time their installed solar energy system begins generating electricity". The United States adds that "[n]o further payments, however, are permitted after October 31, 2028".²⁶⁸ We understand this as indicating that the United States does not contest India's assertion that incentive payments under the SEPI may continue even though the program has been repealed.

We note that both parties agree that payments under the SEPI may continue, even after repeal, for those applicants whose applications were approved prior to May 2017.²⁶⁹ We understand this as confirming that the SEPI has ongoing effects, in the form of potential payments, that continue to exist even after the program's repeal. As noted above, past cases have indicated that it may be appropriate for a panel to assess the WTO-consistency of an expired measure if that measure may continue to have effects.

In light of the above, we consider it appropriate to make findings on this program, even though it was repealed during these proceedings.

Turning to the question of whether we should make recommendations if we find that the SEPI is WTO-inconsistent, we recall that the Appellate Body has indicated that "the fact that a measure has expired 'may affect' what recommendation a panel may make".²⁷⁰ We are of the view that, given the potential continuing effects of the SEPI program, a finding of inconsistency would warrant a qualified recommendation that the United States bring itself into compliance, to the extent that the incentives under this program may continue to be paid following its repeal, and thus may continue to impair benefits accruing to India under a covered agreement.

As noted above²⁷¹, the Minnesota legislature repealed the rebate program on the installation of solar thermal systems on 22 May 2017, after the Panel was established.²⁷² We recall that, following a request for a preliminary ruling by the United States, we found that the Minnesota solar thermal rebate is within our terms of reference.²⁷³ Our preliminary ruling addressed the evolution of India's case from its consultations request to its panel request in regard to the Minnesota solar thermal rebate²⁷⁴, not the fact that the Minnesota solar thermal rebate was repealed following panel establishment. The United States did not contest the latter issue in its preliminary ruling request, and indeed it arose only at a later stage in these proceedings.

In response to a question from the Panel, India clarified that, despite the repeal of the Minnesota solar thermal rebate following panel establishment, it is seeking both findings and recommendations on this program because, in India's view, it "continues to be in operation and has an ongoing effect".²⁷⁵ In particular, according to India, "applications which were approved prior to the effective date of Senate File [sic] No. 1456 w[ill] continue to receive incentives until the year 2023".²⁷⁶

The United States does not explicitly address India's request for findings and recommendations with respect to this program; it merely asserts that "[it] does not dispute that those measures were in existence on the date of panel establishment".²⁷⁷ However, the United States submits that, as a matter of fact, "[r]ebate payments are not ongoing" under this program. According to the United States, the legislation that repealed the Minnesota solar thermal rebate (i.e. Senate Bill No. 1456) provides that "no rebate payments would be paid to owners whose applications were approved after May 30, 2017".²⁷⁸ Senate Bill No. 1456 further clarifies that "[s]ystem owners were required to install the approved solar thermal system by December 31, 2017, to remain eligible for the rebate payment [and] [t]he Minnesota Department of Revenue was required to release rebate payments by July 1, 2018, at the latest".²⁷⁹ Therefore, the United States contends that "the latest-in-time payment under the Minnesota Solar Thermal Rebate would have occurred no later than July 1, 2018".²⁸⁰

India responds that the United States has wrongly relied upon evidence, namely certain excerpts from the 2017 Guide for Applicants, which does not seem to be applicable to the Minnesota solar thermal rebate program.²⁸¹ India further states that, even if the Guide were applicable to the solar thermal rebate, it would not override the provisions of the parent statute, in particular Article 10, Section 28 of the Senate Bill No. 1456, which provides that no rebate will be paid to applications approved after its effective date. To the contrary, according to India, the Guide indicates that "applications which were approved prior to the effective date of Senate File [sic] No. 1456 would continue to receive incentives until the year 2023".²⁸²

We note that Section 28 of Senate Bill No. 1456 provides as follows with respect to the repeal of the Minnesota solar thermal rebates:

(a) No rebate may be paid under Minnesota Statutes 2016, section 216C.416, to an owner of a solar thermal system whose application was approved by the commissioner of commerce after the effective date of this act.

(b) Unspent money remaining in the account established under Minnesota Statutes 2014, section 216C.416, as of July 2, 2017, must be transferred to the C-LEAF account established under Minnesota Statutes 2016, section 116C.779, subdivision 1.

Section 28(a) refers to the point in time at which an application must be approved in order for the applicant to receive rebate payments. However, the provision does not address the issue of the timing of any final payment, in particular in respect of applications approved prior to the effective date of the repeal legislation. Likewise, Section 28(b) refers only to "unspent money" being transferred to another account, but it does not specify whether rebates will continue to be paid from this new account. Accordingly, in our view, the text of Section 28 of Senate Bill No. 1456 does not clearly answer the question whether rebate payments may continue following the repeal of the Minnesota solar thermal rebate, in particular with respect to previously approved recipients.

Turning to the section of the 2017 Guide for Applicants on which the United States relies as evidence that post-repeal incentive payments are not permitted, we note that it provides that the "[p]ayments will [be] allocated as provide[d] under Minnesota Statute 216C.415".²⁸³ This section of the Guide seems to refer only to the SEPI program, as it deals with "[i]ncentive payments … to an owner of grid-connected solar photovoltaic modules…".²⁸⁴ There is no mention in this section of solar thermal systems, which are the products at issue under the Minnesota solar thermal rebate program set out in Section 216C.416.

At the same time, other parts of the 2017 Guide for Applicants are, in our view, more ambiguous as concerns the Guide's scope. For instance, in one place the Guide indicates that applicants "will be able to select which Made in Minnesota Program [they] would like to apply for … PV Production Incentive, Solar Thermal Rebate or PV Community Solar Garden Program".²⁸⁵ There are also other references to solar thermal systems throughout the Guide.²⁸⁶

Based on the evidence before us, it is unclear whether the above-referenced provisions on payments contained in the 2017 Guide for Applicants apply to the Minnesota solar thermal rebate and, if so, how this Guide relates to the relevant Sections of the 2016 Minnesota Statutes, particularly in light of their repeal on 22 May 2017 by Senate Bill No. 1456.

We recall that, having requested us to make findings and recommendations on the Minnesota solar thermal rebate, India bears the burden of showing that this repealed program has ongoing effects. In light of the limited evidence before us, we are not in a position to determine whether payments under the Minnesota solar thermal rebate program continue following its repeal. Accordingly, we find that India has not made a prima facie case that the Minnesota solar thermal rebate has ongoing effects, and therefore, constitutes a "matter" before us which "still requires to be examined" in order to provide a positive solution to the dispute.²⁸⁷ As a result, we conclude that India has not demonstrated that we need to make findings and recommendations on the Minnesota solar thermal rebate in order to secure a positive resolution to this dispute.

For the foregoing reasons, we will not make any findings or recommendations on the Minnesota solar thermal rebate. As regards the SEPI, we will make findings and qualified recommendations to the extent that incentives granted under this program may continue to be paid following its repeal, and thus may continue to impair the benefits accruing to India under a covered agreement.

India presents its claims in this dispute beginning with Article III:4 of the GATT 1994, followed by Articles 2.1 and 2.2 of the TRIMs Agreement, Articles 3.1(b), 3.2, and 25 of the SCM Agreement, and, finally, Article XXIII:1(a) of the GATT 1994.²⁸⁸ The United States has addressed India's claims in the same order.²⁸⁹

The parties suggest that the Panel follow the same order in its own analysis.²⁹⁰

According to the Appellate Body, "[a]s a general principle, panels are free to structure the order of their analysis as they see fit"; "[a]t the same time, panels must ensure that they proceed on the basis of a properly structured analysis to interpret the substantive provisions at issue."²⁹¹ More specifically, as regards the specific provisions invoked by India in this dispute, the Appellate Body has explained that "the national treatment obligations in Article III:4 of the GATT 1994 and the TRIMs Agreement, and the disciplines in Article 3.1(b) of the SCM Agreement, are cumulative", and that there is "nothing in these provisions to indicate that there is an obligatory sequence of analysis to be followed where claims are made under Article III:4 of the GATT 1994 and the TRIMs Agreement, on the one hand, and Article 3.1(b) of the SCM Agreement, on the other hand."²⁹² Thus, the order of analysis of claims under Article III:4 of the GATT 1994, the TRIMs Agreement, and Article 3 of the SCM Agreement falls "within the panel's margin of discretion".²⁹³

In considering how to exercise this discretion, we recall that for India, "the core of [its] claims lie[s] in the discriminatory treatment between the imported products and 'like' products of domestic origin"²⁹⁴, and that, according to India, "[its] claims under the TRIMs Agreement and the SCM Agreement clearly emanate from the violation of Article III:4 of the GATT 1994".²⁹⁵ In light of this position, and absent "a mandatory sequence of analysis" among these provisions "which, if not followed, would amount to an error of law"²⁹⁶, we see no reason to depart from the sequence jointly advocated by the parties.²⁹⁷ We also note that several panels facing similar claims have adopted this sequence.²⁹⁸

We will therefore start by reviewing India's claims under Article III:4 of the GATT 1994, before turning to India's additional, follow-on "discriminatory treatment" claims under Articles 2.1 and 2.2 of the TRIMs Agreement and Articles 3.1(b) and 3.2 of the SCM Agreement.

Following our analysis of India's claims concerning "discriminatory treatment", we will turn to India's notification claim under Article 25 of the SCM Agreement and its claim of nullification or impairment of benefits under Article XXIII:1(a) of the GATT 1994.

According to India, each measure at issue²⁹⁹ is inconsistent with the obligations of the United States' under Article III:4 of the GATT 1994 because they accord treatment less favourable to imported products than to like domestic products, i.eproducts originating in specific municipalities or States of the United States.³⁰⁰ According to the United States, India has failed to establish that the measures at issue breach Article III:4 of the GATT 1994.³⁰¹ In particular, according to the United States, India has not met its burden of demonstrating that these measures (i) affect the sale, purchase, transportation, distribution or use of products; or (ii) accord less favourable treatment to imported products within the meaning of that provision.³⁰²

To establish a violation of Article III:4 of the GATT 1994, the following three elements must be satisfied:

a) that the imported and domestic products at issue are like products;

b) that the measure at issue is a "law, regulation, or requirement affecting their internal sale, offering for sale, purchase, transportation, distribution, or use"; and

c) that the imported products are accorded treatment less favourable than that accorded to like domestic products.³⁰³

We now turn to analyse each of these elements in respect of each of the measures at issue. As discussed above³⁰⁴, Measures 1, 2, and 8, and two programs under Measure 10 were amended or repealed following panel establishment. We have concluded that we will make findings and, where appropriate, recommendations, on India's claims with respect to Measures 1, 2 and 8 as amended. In the case of Measure 2, we will also examine the original version as elaborated by the 2016 SGIP Handbook given that some of its aspects may continue to be operative. As regards the two programs under Measure 10 repealed following panel establishment, we have decided not to make any findings or recommendations on the Minnesota solar thermal rebate. We will only make findings on the Minnesota solar energy production incentive program on the installation of solar photovoltaic modules (SEPI), and issue recommendations on this program insofar as it has ongoing effects.

India argues that each of the measures at issue discriminates between like imported and domestic products. More specifically, according to India, the measures at issue provide for differential treatment based on where the products were manufactured or assembled, or based on the origin of the workforce used in their manufacture. India contends that because the origin of the relevant products is the "sole criterion" for differential treatment under the measures at issue, such products qualify as like products within the meaning of Article III:4 of the GATT 1994.³⁰⁵

The United States has not contested that the relevant domestic and imported products are like products within the meaning of Article III:4, nor does it challenge the legal standard for likeness relied upon by India.

The Appellate Body has stated that "a determination of 'likeness' under Article III:4 [of the GATT 1994] is, fundamentally, a determination about the nature and extent of a competitive relationship between and among products".³⁰⁶ Usually, assessing whether products are like requires a careful and holistic analysis of the evidence on the record, taking into account the four Border Tax Adjustment criteria.³⁰⁷ However, several past cases support the proposition that where a measure distinguishes between products solely on the basis of origin, the likeness of the products so distinguished can be presumed.³⁰⁸ Notably, in Argentina – Financial Services, the Appellate Body recognised that various "[p]anels have held that, rather than invariably establishing 'likeness' on the basis of the relevant criteria, a complainant may establish 'likeness' by demonstrating that the measure at issue makes a distinction based exclusively on the origin of the product."³⁰⁹ As India argues³¹⁰, this indicates that where a measure distinguishes between products solely on the basis of origin, a detailed likeness analysis based on the Border Tax Adjustment criteria may not be necessary.

We now examine whether the relevant products under each measure at issue are like within the meaning of Article III:4 of the GATT 1994, and in particular whether, as India argues, each of the measures distinguishes between relevant products solely on the basis of origin.

As noted³¹¹, the Washington State additional incentive is provided for customer-generated electricity produced using solar inverters, solar modules, stirling converters, or wind blades manufactured in Washington State.

India has identified the following products as relevant under the Washington State additional incentive: (i) solar modules; (ii) stirling converters; (iii) inverters used in a solar or wind generator; and (iv) blades used in a wind generator.³¹² India argues that "the only distinguishing criteria for obtaining the additional/higher incentives is whether or not certain specified components are of Washington-origin."³¹³ India further argues that "RCW 82.16.120 (4) read with WAC 458-20-273 (501)(b) makes the origin of the specified products as the sole criteria for granting higher incentives upon production of electricity using a renewable energy system."³¹⁴

The United States has not contested this aspect of India's claim under Article III:4 of the GATT 1994.

Section 82.16.120(4) of the Revised Code of Washington (RCW)³¹⁵, which establishes the different economic development factors to be applied to the base rate in order to calculate the final incentive rate, refers to the same products as those identified by India.³¹⁶

Section 458-20-273(601)(a) of the Washington Administrative Code (WAC) defines the products at issue.³¹⁷ Additionally, paragraph (b) of Section 458-20-273(601) of the WAC clarifies that "the [D]epartment of [R]evenue considers various factors in determining if a person combining various items into a single package is engaged in a manufacturing activity", and that "[a]ny single one of the … factors is not considered conclusive evidence of a manufacturing activity".³¹⁸ The WAC further provides that, following a request from the manufacturer addressed to the Department of Revenue, and a field visit by the Department of Revenue of the manufacturing facilities to view the manufacturing process for the product, the Department of Revenue will approve or disapprove the manufacturer's certification of a product as made in Washington State.³¹⁹

Accordingly, to qualify for the differential treatment in Section 82.16.120(4) of the RCW, the products must comply with the definitions contained in Section 458-20-273(601)(a) of the WAC, and the manufacturer of the products must obtain a certification of a product qualifying as made in Washington State from the Department of Revenue. Imported products may meet the former but not the latter requirement.

Thus, we find that, as India has argued, the Washington State additional incentive distinguishes solely on the basis of origin with regard to solar modules, stirling converters, inverters used in a solar or wind generator, and blades used in a wind generator. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal by the United States on this point, we find that the products at issue under Measure 1 are like for the purposes of Article III:4 of the GATT 1994.

As noted³²⁰, the California Manufacturer Adder consists of an additional 20% incentive payment for the installation of eligible distributed generation resources "from a California Supplier" (under the 2016 California Self-Generation Incentive Program (SGIP) Handbook) or generation and energy storage equipment "manufactured in California" (under the 2017 SGIP Handbook).

India has identified the relevant product under the California Manufacturer Adder as the "'eligible equipment' … as set out under the [SGIP] Handbooks".³²¹ In its responses to our questions, India clarified that the eligible products under the 2016 SGIP Handbook are "eligible distributed generation or [Advanced Energy Storage] AES technologies"³²², whereas the 2017 SGIP Handbook limits eligible products to certain generation equipment and certain storage equipment.³²³ India argues that "[t]he text of the measures at issue under the Handbooks that infix the California Manufacturer Adder indicates that the determinant of the challenged additional incentive is based either on the specific eligible equipment having been manufactured in California or on the specified percentage of total value of the eligible equipment having been manufactured in California by a California Supplier or a California Manufacturer, as the case may be".³²⁴

The United States has not contested this aspect of India's claim under Article III:4 of the GATT 1994.

The 2016 and 2017 SGIP Handbooks define some of the products at issue.³²⁵ As mentioned above³²⁶, both the 2016 and 2017 SGIP Handbooks distinguish between, on the one hand, "eligible distributed generation or AES technologies from a California Supplier"³²⁷ and "equipment … manufactured in California"³²⁸, respectively, and, on the other hand, relevant distributed generation, and AES technologies and equipment of another origin.

Under both requirements, i.e. "California Supplier" in the 2016 SGIP Handbook and "manufactured in California" in the 2017 SGIP Handbook, the legislation distinguishes between the place where the products are manufactured. The definition of "California Supplier" under the 2016 SGIP Handbook explicitly requires that the supplier manufacture the relevant products in California, in addition to other requirements concerning the location in California of the owners or policymaking officers' domicile, and the permanent principal office or the manufacturing facility. It further includes references to the California residence of the workers and the need for the company to be licensed in California. In turn, the 2017 SGIP Handbook provides that the "manufactured in California" requirement will be fulfilled "if at least 50% of the value of the capital equipment has been made in a dedicated production line by an approved California Manufacturer".³²⁹ The definition of California Manufacturer under the 2017 SGIP Handbook reiterates the link to the California origin of the equipment by requiring that the manufacturing facility be located in California, and the manufacturer be licensed to conduct business in that state.³³⁰ It is therefore clear, in our view, that imported products could never qualify for the California Manufacturer Adder, either under the 2016 or the 2017 SGIP Handbook.

Accordingly, we find that, as India has argued, the California Manufacturer Adder distinguishes solely on the basis of origin with regard to the relevant distributed generation technologies. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal by the United States on this point, we find that the products at issue under Measure 2 are like for the purposes of Article III:4 of the GATT 1994.

As explained above³³¹, the Montana tax incentive for ethanol production provides "tax incentive[s] for the production of ethanol to be blended for ethanol-blended gasoline"³³², provided that production is in Montana and uses Montana agricultural products, including Montana wood or wood products.³³³

According to India, under the Montana tax incentive, "greater incentives are provided for ethanol which is produced from Montana agricultural products including Montana wood and wood-based products".³³⁴ In India's view, "the tax incentive being provided to ethanol distributors is based solely on their usage of raw material sourced from Montana", and "[t]he incentive is, therefore, contingent on and proportionate to the origin of the raw material".³³⁵ India concludes that because "the distinction between the ethanol produced is limited to their origin of the raw material used [sic] … it will be held to be 'like' to those products of Montana-origin for the purposes of Article III:4 of the GATT 1994".³³⁶

The United States has not contested this aspect of India's claim under Article III:4 of the GATT 1994.

As we understand it, India's position is that there are potentially two sets of products that are like for the purposes of analysing the Montana tax incentive: (i) wood and wood-based products; and (ii) ethanol made from wood or wood-based products.

Section 15-70-522 of the Montana Annotated Code (MCA) provides for a tax incentive payable to ethanol distributors on "ethanol … produced in Montana from Montana agricultural products, including Montana wood or wood products".³³⁷ The measure does not make provision for a tax incentive on ethanol produced outside of Montana. Similarly, ethanol produced in Montana from non-Montana wood or wood-based products is only eligible for the incentive "when Montana products are not available".³³⁸ The measure does not suggest that there is any difference between Montana and non-Montana-origin ethanol and wood and wood-based products in terms of physical characteristics, consumer tastes and habits, tariff classification, end-uses, or any other criterion. Nor does it suggest that there is any difference between ethanol produced in Montana from Montana-origin wood or wood-based products, on the one hand, and ethanol produced outside of Montana or using non-Montana wood or wood-based products, on the other hand. Moreover, the United States has not argued that any such differences exist.

Accordingly, we find that, as India has argued, the Montana tax incentive distinguishes solely on the basis of origin with regard to ethanol and wood and wood-based products. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal by the United States on this point, we find that the products at issue under Measure 4 are like for the purposes of Article III:4 of the GATT 1994.

As noted above³³⁹, the Montana tax credit for biodiesel blending and storage provides for "special fuel distributors" and "owners or operators of a motor fuel outlet" to receive a "credit against [certain] taxes … for the costs of investments in depreciable property used for storing or blending biodiesel with petroleum diesel for sale".³⁴⁰ This incentive is only available if the investment for which the credit is claimed is used primarily to blend petroleum diesel with biodiesel made entirely from Montana-produced feedstocks.³⁴¹

India argues that the availability of the tax credit is "contingent on the use of biodiesel which is produced entirely from Montana-origin feedstock". Thus, in India's view, the measure creates a "distinction between the biodiesel and feedstock used to manufacture it … on the basis of the place of origin".³⁴²

The United States does not contest this aspect of India's claim under Article III:4 of the GATT 1994.

As we understand it, there are potentially two sets of products that, according to India, are like for the purposes of analysing Measure 5: feedstock from which biodiesel is made, and biodiesel itself.³⁴³

Section 15-32-703(4)(a) of the Montana Annotated Code (MCA) indicates that the tax incentives at issue are available only "for depreciable property used primarily to blend petroleum diesel with biodiesel made entirely from Montana-produced feedstocks".³⁴⁴ The measure does not make provision for incentives to be paid in respect of investments used to blend petroleum diesel with biodiesel made partly or wholly from non-Montana-produced feedstocks. However, the measure does not suggest, and the United States has not argued, that there is any difference between Montana-origin and non-Montana origin feedstock as an input into biodiesel. Neither is there any suggestion on the record that biodiesel made from Montana-origin feedstock is in any way different from biodiesel made from non-Montana-origin feedstock.

Accordingly, we find that, as India has argued, the Montana tax credit distinguishes solely on the basis of origin with regard to feedstock and biodiesel produced using feedstock. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal by the United States on this point, we find that the products at issue under Measure 5 are like for the purposes of Article III:4 of the GATT 1994.

As explained above³⁴⁵, the Montana tax refund provides that "licensed distributors" and "owners and operators of retail motor fuel outlets" may receive a tax refund on the sale of biodiesel "produced entirely from biodiesel ingredients produced in Montana".³⁴⁶

India submits that "the basis on which the biodiesel is differentiated for the purposes of the tax refund is the place of origin of the raw material, i.e. biodiesel ingredients".³⁴⁷ In India's view, because "the only basis of distinction between the biodiesel as well as the ingredients used to manufacture it is on the basis of the place of production of the ingredients, the products, viz. biodiesel and the ingredients used to manufacture it" from Montana, on the one hand, and from outside Montana, on the other hand, are like for the purposes of Article III:4.³⁴⁸

The United States does not contest this aspect of India's claim under Article III:4 of the GATT 1994.

We recall that Sections 15-70-433(1) and (2) of the Montana Annotated Code (MCA) both specify that the relevant tax incentives are only available "if the biodiesel is produced entirely from biodiesel ingredients produced in Montana".³⁴⁹ Under Measure 6, no incentive is available for biodiesel produced from ingredients made wholly or partly from ingredients produced outside Montana. The text of Measure 6 does not suggest, and the United States has not argued, that any qualitative difference exists between biodiesel produced from Montana-origin ingredients and biodiesel produced wholly or partly from ingredients originating outside Montana. Nor does the evidence indicate that the ingredients themselves may have different qualities depending on whether they are produced in Montana or somewhere else.

Accordingly, we find that, as India has argued, the Montana tax refund distinguishes solely on the basis of origin with regard to biodiesel and biodiesel ingredients. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal by the United States on this point, we find that the products at issue under Measure 6 are like for the purposes of Article III:4 of the GATT 1994.

As noted above³⁵⁰, the Connecticut additional incentive makes available "direct financial incentives, in the form of performance-based incentives or expected performance-based buydowns, for the purchase or lease of qualifying residential solar photovoltaic systems" (solar PV systems).³⁵¹ Importantly, additional incentives of up to 5% of the ordinarily available incentive may be provided for the use of "major system components manufactured or assembled in Connecticut", and another additional incentive of up to 5% of the ordinarily available incentive may be provided "for the use of major system components manufactured or assembled in a distressed municipality … or a targeted investment community".³⁵²

India argues that "major system components" "manufactured or assembled in Connecticut and those imported from outside Connecticut (including from the territory of other Members) are 'like' within the meaning of Article III:4 of the GATT".³⁵³ According to India, "in so far as the only basis of distinction between products made in Connecticut and outside the state of Connecticut is their origin, the products should be held to be 'like' for the purposes of Article III:4 of the GATT 1994".³⁵⁴

The United States does not contest this aspect of India's claim under Article III:4 of the GATT 1994.

We recall that Section 16-245ff(i) of the Connecticut General Statutes provides as follows:

The Public Utilities Regulatory Authority shall provide an additional incentive of up to five per cent of the then-applicable incentive provided pursuant to this section for the use of major system components manufactured or assembled in Connecticut, and another additional incentive of up to five per cent of the then-applicable incentive provided pursuant to this section for the use of major system components manufactured or assembled in a distressed municipality [within Connecticut]…³⁵⁵

The term "major system component" is not defined in the text of Measure 7. In response to a question from the Panel, India argued that the term "may be understood as key/major components of a [PV] system".³⁵⁶ The United States has not contested India's definition. We therefore accept that the products at issue under Measure 7 are the key or major components necessary to construct a PV system.

The text of Section 16-245ff(i) of the Connecticut General Statutes provides that an additional incentive of up to 5% will be made available in respect of PV systems containing major system components manufactured or assembled in Connecticut, whereas the same incentive will not be made available in respect of PV systems that do not contain such major system components. However, the text does not suggest, and the United States has not argued, that there is any qualitative difference between major system components manufactured in Connecticut and those manufactured outside of Connecticut.

Accordingly, we find that, as India has argued, the Connecticut additional incentive distinguishes between key or major components of PV systems solely on the basis of origin, i.e. whether they are manufactured or assembled in Connecticut. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal by the United States on this point, we find that the products at issue under Measure 7 are like for the purposes of Article III:4 of the GATT 1994.

As explained above³⁵⁷, the Renewable Energy Standards Program in the State of Michigan (RESPM) requires electric providers to achieve a "renewable energy credit portfolio"³⁵⁸ by either generating or purchasing electricity produced using renewable energy systems.³⁵⁹ One renewable energy credit (REC) is credited for each megawatt hour of electricity.³⁶⁰ However, an additional 1/10 credit is awarded for every kilowatt hour produced using a renewable energy system that was either (i) constructed using equipment made in Michigan³⁶¹ (the Michigan Equipment Multiplier); or (ii) constructed using a workforce composed of residents of Michigan (the Michigan Labour Multiplier).³⁶²

India argues that "renewable energy systems constructed using the equipment made in Michigan or using the workforce composed of the Michigan residents … and [renewable energy systems] imported from outside the United States are 'like' within the meaning of Article III:4 of the GATT 1994".³⁶³ More specifically, India submits that "the only distinguishing criteria for obtaining the additional incentives granted through the Michigan Equipment Multiplier is whether or not the equipment used in the 'renewable energy system' or as 'renewable energy system' as the final product [sic] are manufactured in Michigan".³⁶⁴ Similarly, India argues that the "only distinguishing criteria for obtaining the additional incentives granted through the Michigan Labour Multiplier is whether or not the renewable energy system has been constructed using workforce composed of the Michigan-residents [sic]", and is therefore "based on the in-state manufacture level".³⁶⁵ India concludes that "both … multipliers … make a distinction based on origin", and therefore renewable energy systems entitled to receive the additional credits are like renewable energy systems that are not entitled to receive the additional credits for the purposes of Article III:4 of the GATT 1994.³⁶⁶

The United States does not contest this aspect of India's claim under Article III:4 of the GATT 1994.

Section 39(2)(d) of Michigan Public Act No. 342 provides that an additional 1/10 credit is granted for each megawatt hour of electricity generated from a renewable energy system constructed using equipment made in Michigan.³⁶⁷ Similarly, Section 39(2)(e) of the same Act provides that an additional 1/10 credit will be awarded for each megawatt hour of electricity from a renewable energy system constructed using a workforce composed of residents of Michigan.³⁶⁸ These provisions make clear that energy produced from renewable energy systems not constructed using Michigan-made equipment or not constructed by a workforce composed of Michigan residents does not receive an additional 1/10 REC per megawatt hour. Notably, the text of Measure 8 does not suggest, and the United States has not argued, that there is any qualitative difference in renewable energy systems depending on whether they are made from Michigan-sourced equipment or constructed by a workforce composed of Michigan residents.

Accordingly, we find that, as India has argued, the Michigan Equipment Multiplier and the Michigan Labour Multiplier distinguish between renewable energy systems solely on the basis of origin. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal by the United States on this point, we find that the products at issue under Measure 8 are like for the purposes of Article III:4 of the GATT 1994.

As noted above³⁶⁹, the Delaware Renewable Energy Portfolio Standards Act (REPSA) provides retail electricity suppliers with an additional 10% credit toward meeting the renewable energy portfolio standards for solar or wind energy installations, provided that a minimum of 50% of the cost of renewable energy equipment, inclusive of mounting components, are manufactured in Delaware (the Delaware Equipment Bonus), or that the facility is constructed or installed with a minimum of 75% in-state workforce (the Delaware Workforce Bonus).

India has identified "renewable energy equipment", including "mounting components" as the products at issue under the Delaware Equipment Bonus.³⁷⁰ India argues that "[t]he text of the measure in the REPSA indicates that the determinant of the challenged additional incentive is based upon either the percentage of total cost of renewable energy equipment and mounting component that should be manufactured in Delaware or upon the percentage of in-state workforce used in the construction and/ or installation of the facility."³⁷¹

The United States has not contested this aspect of India's claim under Article III:4 of the GATT 1994.

We note that the relevant legal instruments support India's argument. Notably, none of the exhibits on the record define the terms "renewable energy equipment" or "mounting components", as used in the Delaware Equipment Bonus and the Delaware Workforce Bonus. We agree with India that "the[se] terms can be understood to mean any solar or wind renewable energy equipment, including its parts used for generating energy which would qualify for meeting renewable energy portfolio standard".³⁷²

We also note that Section 356(d) of the Delaware Code provides that an additional 10% credit is granted for solar or wind energy installations sited in Delaware provided that a minimum of 50% of the cost of renewable energy equipment, inclusive of mounting components, are manufactured in Delaware.³⁷³ Similarly, Section 356(e) of the same Code provides that an additional 10% credit is granted for solar or wind energy installations sited in Delaware provided that the facility is constructed or installed with a minimum of 75% workforce from Delaware.³⁷⁴ These provisions make clear that energy produced from renewable energy equipment not manufactured using Delaware-made equipment, or facilities not constructed by a workforce composed of Delaware residents does not receive an additional 10% credit. Notably, the text of the provision does not suggest, and the United States has not argued, that there is any qualitative difference in renewable equipment or facilities depending either on whether they are made from Delaware-sourced equipment or whether they are constructed by a workforce composed of Delaware residents.

Accordingly, we find that, as India has argued, the Delaware Equipment Bonus and the Delaware Workforce Bonus distinguish solely on the basis of origin with regard to renewable energy systems and facilities. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal by the United States on this point, we find that the products at issue under Measure 9 are like for the purposes of Article III:4 of the GATT 1994.

As noted above³⁷⁵, we will only examine two of the three programs identified by India under Measure 10, i.e. the Minnesota solar energy production incentive program on the installation of solar photovoltaic (PV) modules (SEPI), and the Minnesota solar photovoltaic (PV) rebate.

As explained above³⁷⁶, these two programs grant financial incentives and rebates for the use of solar PV modules made in Minnesota.

India has identified solar PV modules as the relevant products under these two programs under Measure 10.³⁷⁷ India argues that "the only basis on which the solar PV modules … manufactured within and outside Minnesota are differentiated is the place of origin".³⁷⁸

The United States has not contested this aspect of India's claim under Article III:4 of the GATT 1994.

Under the SEPI, solar PV modules must have received a 'Made in Minnesota' certificate under Section 216C.413 of the 2016 Minnesota Statutes.³⁷⁹ As noted above³⁸⁰, to receive this certificate, solar PV modules must meet requirements relating to the location of the manufacturing facility in Minnesota, among others. Thus, imported solar PV modules cannot qualify for the "Made in Minnesota" certificate that gives access to the SEPI.

Under the Minnesota solar PV rebate, solar PV modules must be manufactured in Minnesota.³⁸¹ Section 116C.7791 of the 2016 Minnesota Statutes links the manufacturing process to Minnesota by requiring that the manufacturer of the solar PV modules operate in this State. Consequently, imported solar PV modules cannot qualify for the rebate under this program.

Accordingly, we find that, as India has argued, the SEPI and the Minnesota solar PV rebate distinguish between solar PV modules solely on the basis of origin. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal by the United States on this point, we find that the products at issue under the SEPI and the Minnesota solar PV rebate under Measure 10 are like for the purposes of Article III:4 of the GATT 1994.

We find that, in the context of each of the measures at issue, the relevant imported and domestic products are like products within the meaning of Article III:4 of the GATT 1994.

The second element of the legal test under Article III:4 of the GATT 1994 raises two questions: (i) whether the measures are covered by the phrase "laws, regulations and requirements"; and, if so, (ii) whether they "affect the[] internal sale, offering for sale, purchase, transportation, distribution or use" of the products at issue. We examine these two issues in turn.

India argues that each of the measures at issue falls within the scope of the phrase "laws, regulations and requirements" in Article III:4 of the GATT 1994.³⁸² Recalling the statement by the panel in Japan – Film that "panels have taken a broad view of when a governmental measure is a law, regulation or requirement"³⁸³, India submits that this phrase should be given a "broad interpretation".³⁸⁴ India adds that "for a governmental policy or action to fall within the scope of 'laws, regulations and requirements', it need not necessarily have a substantially binding or compulsory nature".³⁸⁵ Further, India recalls that the panel in India – Autos explained that GATT panel reports suggest two distinct situations that would satisfy the term "requirement" in Article III:4: (i) obligations which an enterprise is "legally bound to carry out"; and (ii) those that an enterprise voluntarily accepts to obtain an advantage from the government.³⁸⁶

The United States does not contest either India's articulation of the applicable legal standard or its assertion that the measures at issue constitute "laws, regulations and requirements".³⁸⁷

Leaving aside the original versions of Measures 1 and 8 and the repealed solar thermal rebate program under Measure 10, on which we have decided not to make findings³⁸⁸, India has identified the following legal instruments in respect of each of the measures at issue:

We note that past cases have consistently held that the scope of the phrase "laws, regulations and requirements" in Article III:4 of the GATT 1994 is broad.³⁹⁰ The panel in Japan – Film considered that the phrase "laws, regulations and requirements" "should be interpreted as encompassing a … broad range of government action and action by private parties that may be assimilated to government action".³⁹¹ More specifically, the panel in India – Solar Cells noted,in the context of Article XX(d) of the GATT 1994, that "dictionary definitions make clear that 'laws' and 'regulations' refer to 'rules'".³⁹² More recently, the panel in Brazil – Taxation confirmed that the term "laws, regulations and requirements" "encompasses a variety of governmental measures, from mandatory rules which apply across the board, to government action that merely creates incentives or disincentives for otherwise voluntary action by private persons".³⁹³ Notably, the term "requirement" has repeatedly been found to cover not just "mandatory measures but also [] conditions that an enterprise accepts in order to receive an advantage".³⁹⁴

All the measures identified by India and enumerated in the above table are embodied, wholly or at least partly, in formal legal instruments such as codes, rules, acts and statutes. These instruments clearly qualify as "laws" or "regulations" resulting from "governmental action"³⁹⁵ and setting out rules with which compliance is necessary to obtain an advantage from a government.

In respect of Measure 2, India has also identified handbooks that develop and clarify certain rules and procedures set out in the related legislative instruments.³⁹⁶ We consider that these documents may come within the broad definition of "regulation", understood as "[a] rule or principle governing behavior or practice; esp. such a directive established and maintained by an authority"³⁹⁷, given that they essentially develop particular aspects of the California Manufacturer Adder as established in legislative acts, codes or statutes. In any case, we are of the view that these instruments qualify at least as "requirements" within the meaning of Article III:4, because they set out the conditions and procedures that need to be followed to benefit from the relevant advantages, and they are issued by public authorities responsible for administering these programs. In this regard, we recall the guidance by the panel in India – Autos referenced by India³⁹⁸ that "GATT jurisprudence … suggests two distinct situations which would satisfy the term 'requirement' in Article III:4: (i) obligations which an enterprise is 'legally bound to carry out'; [and] (ii) those which an enterprise voluntarily accepts in order to obtain an advantage from the government".³⁹⁹

Thus, we find that each of the measures at issue falls within the scope of the phrase "laws, regulations and requirements" as used in Article III:4 of the GATT 1994.

India submits that each of the measures at issue affects the sale, purchase, transportation, distribution or use of the imported like products because they "adversely modify the conditions of competition" between domestic and imported products by providing "incentives" or "higher incentives" based on domestic input.⁴⁰⁰

The United States submits that India has not met its burden of proof to show that each of the measures at issue "affect[s] the[] internal sale, offering for sale, purchase, transportation, distribution or use" of the relevant products. According to the United States, India, having alleged that the measures have "incentivizing" effects, was required, but failed, to demonstrate that the measures at issue incentivize the use of domestic over imported products.⁴⁰¹

We recall the Appellate Body's statement that the word "affecting" has a broad scope of application, "wider in scope than such terms as 'regulating' or 'governing'".⁴⁰² According to the Appellate Body, "[t]he ordinary meaning of the word 'affecting' implies a measure that has 'an effect on', which indicates a broad scope of application".⁴⁰³ Past panels have clarified that "the word 'affecting' in Article III:4 of the GATT … cover[s] not only laws and regulations which directly govern the conditions of sale or purchase but also any laws or regulations which might adversely modify the conditions of competition between domestic and imported products"⁴⁰⁴, as well as "measures which create incentives or disincentives with respect to the sale, offering for sale, purchase, and use of an imported product".⁴⁰⁵

In this connection, we recall that in Canada – Autos, the panel concluded that where a challenged measure confers an advantage on the use of a domestic product but not on the use of a like imported product, it can clearly be characterized as affecting the internal sale or use of those products, because it necessarily has an impact on the conditions of competition:

[A] measure which provides that an advantage can be obtained by using domestic products but not by using imported products has an impact on the conditions of competition between domestic and imported products and thus affects the "internal sale, … or use" of imported products.⁴⁰⁶

The same panel emphasized that a measure may affect the sale, purchase, transportation, distribution or use of products independently of its impact "under current circumstances"⁴⁰⁷:

The idea that a measure which distinguishes between imported and domestic products can be considered to affect the internal sale or use of imported products only if such a measure is shown to have an impact under current circumstances on decisions of private firms with respect to the sourcing of products is difficult to reconcile with the concept of the "no less favourable treatment" obligation in Article III:4 as an obligation addressed to governments to ensure effective equality of competitive opportunities between domestic and imported products, and with the principle that a showing of trade effects is not necessary to establish a violation of this obligation.⁴⁰⁸

The panel in Canada – Autos thus rejected the respondent's argument that the measure at issue did not affect the sale, purchase, transportation, distribution or use of the relevant products because the domestic content requirements it established were very "low".⁴⁰⁹ To the contrary, the panel found it sufficient to observe that the measure had "an effect on the competitive relationship between imported and domestic products by conferring an advantage upon the use of domestic products while denying that advantage if imported products are used".⁴¹⁰ On this basis, the panel held that the case before it "clearly involve[d] formally different treatment of imported and domestic products albeit that the actual trade effects of this different treatment may be minimal under current circumstances"⁴¹¹, and concluded that there was no "need to examine how important the [measure at issue was] under present circumstances as a factor influencing the decisions of" motor vehicle manufacturers whether to use domestic or imported parts in order to conclude that the measures affected the sale, purchase, transportation, distribution or use of the relevant products.⁴¹²

In light of the above, we consider that, in assessing whether a challenged measure affects the sale, purchase, transportation, distribution or use of goods in a market, a panel should examine whether such measure has an impact on the conditions of competition between domestic and imported like products, but need not examine whether or the extent to which the measure has, under current circumstances, influenced purchasing decisions on the market. Moreover, we consider that positive evidence that a measure may have had only minimal impact on the purchasing decisions of private firms will not be sufficient to rebut a prima facie showing that a measure affects the competitive relationship between imported and domestic products because, for example, it confers an advantage upon the use of domestic products while denying that advantage if imported products are used.

Bearing these observations in mind, we now turn to examine whether each of the measures at issue affects the sale, purchase, transportation, distribution or use of relevant products.

India argues that the Washington State additional incentive under the Washington Renewable Energy Cost Recovery Incentive Payment Program (RECIP) "provide[s] higher incentives (i.e. an advantage) based on domestically procured specified components".⁴¹³ On this basis, India concludes that the measure at issue "adversely modif[ies] the conditions of competition between domestic and imported 'like products' and therefore 'affect[s]'" those products.⁴¹⁴

The United States responds that "India has provided no evidence that substantiates its assertion that 'the measures at issue' create a demand for equipment [manufactured in Washington State] and insulate them from competing 'like products' outside of Washington".⁴¹⁵ In the United States' view, India also has not demonstrated that the Washington State additional incentive modifies the conditions of competition "in Washington's market for renewable energy products 'to the determinant [sic] of imported products.'"⁴¹⁶ In particular, the United States argues that the figures relied upon by India that show a growth in the number of solar photovoltaic (PV) systems installed in Washington State between 2005 – when RECIP began – and 2015⁴¹⁷ do not support its assertion that the Washington State additional incentive has induced the wide-scale adoption of Washington-made renewable energy products in Washington State. The United States argues that the figure submitted by India does not indicate the percentage of installed systems – if any – containing components manufactured in Washington State.⁴¹⁸ Absent this information, the United States considers that India has failed to demonstrate that the Washington State additional incentive "ha[s] incentivized or 'affected' the 'use' of Washington-made solar PV systems or components in particular".⁴¹⁹ The United States adds that, out of the approximately USD 17 million in cost recovery incentive payments through 2015 funded by Washington State according to India, nothing indicates the proportion thereof associated with the use of Washington-made renewable energy equipment or components.⁴²⁰ Finally, according to the United States, "[b]ecause incentivization is the vector by which India claims"⁴²¹ that the Washington State additional incentive affects the use of products, India "has necessarily failed to establish that the measure[] 'affect'[s] the 'use' of products with the meaning of" Article III:4.⁴²²

As explained above⁴²³, the Washington State additional incentive is provided for customer-generated electricity produced using solar inverters, solar modules, stirling converters, or wind blades manufactured in Washington State. The measure does not prohibit the use of non-local, including imported solar inverters, solar modules, stirling converters, and wind blades. However, in such cases, no additional incentives based on the highest economic development factors on top of the base incentive rates are available.

In our view, India's demonstration that the Washington State additional incentive accords an advantage on the use of local products (i.esolar inverters, solar modules, stirling converters, or wind blades manufactured in Washington State) that is not available for the use of relevant like non-local products, including imported products, is sufficient to make a prima facie case that the Washington State additional incentive affects the sale, purchase, transportation, distribution or use of the relevant products.

With respect to the United States' argument that the figures provided by India do not support its assertion, we agree with the United States that nothing in the relevant graph shows that the exponential growth of solar PV systems in Washington State between 2005 and 2015 is due, or somehow related, to the provision of the Washington State additional incentive. As pointed out by the United States, the graph in question does not contain information on the percentage of systems containing components manufactured in Washington State, or the type or percentage of components made in Washington State.

Further, the fact that, as of 23 September 2015, USD 17,023,303 from the Washington State budget had been spent on investment cost recovery incentive payments for electricity generated through certified renewable systems does not shed any light on the relationship, if any, between this amount and the Washington State additional incentive. There is no information on the record explaining what percentage of these incentive payments corresponds to customer-generated electricity produced using solar inverters, solar modules, stirling converters, or wind blades manufactured in of Washington State. Therefore, we are unpersuaded by India's assertions in this respect.

Nevertheless, we do not consider that these factual arguments by the United States are capable of rebutting India's prima facie showing that the measure affects the sale, purchase, transportation, distribution or use of the relevant products. This is because, as explained above, the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition between domestic and imported like products, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances". In our view, the Washington State additional incentive "involves formally different treatment of imported and domestic products albeit that the actual trade effects of this different treatment may be minimal under current circumstances".⁴²⁴ Thus, in assessing whether the measure affects the sale, purchase, transportation, distribution or use of the relevant products, the question whether any person or enterprise has actually decided to take up that advantage is, in our view, beside the point.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Washington State additional incentive "affect[s] the internal sale, offering for sale, purchase, transportation, distribution or use" of products within the meaning of Article III:4 of the GATT 1994.

India argues that the California Manufacturer Adder under the California Self-Generation Incentive Program (SGIP) "provide[s] incentives (i.e., an advantage) based on whether the eligible equipment satisfy the requirements of the [program] i.e. whether they are manufactured in California or meet the in-state manufacturing level".⁴²⁵ On this basis, India concludes that Measure 2 "adversely modif[ies] the conditions of competition between the domestic and imported 'like products' and therefore 'affect[s]'" those products.⁴²⁶

The United States responds that "India has provided no evidence that substantiates its assertion that the SGIP Adder operates to 'induce[]' buyers to 'purchase specified products of California-origin.'"⁴²⁷ Moreover, according to the United States, India has also failed to demonstrate that the California Manufacturer Adder modifies the conditions of competition "in the market for renewable energy equipment in California 'to the determinant [sic]of imported products'."⁴²⁸ The United States points out that India has not indicated the number of individuals who have been granted incentives under this program.⁴²⁹ In the United States' view, "[b]ecause incentivization is the vector by which India claims"⁴³⁰ that the California Manufacturer Adder affects the use of products, India "has necessarily failed to establish that the SGIP Adder 'affect[s]' the 'use' of products with the meaning of" Article III:4.⁴³¹

As explained above⁴³², the California Manufacturer Adder consists of an additional 20% incentive payment for the installation of eligible distributed generation resources "from a California Supplier" (under the 2016 SGIP Handbook) or generation and energy storage equipment "manufactured in California" (under the 2017 SGIP Handbook). We further noted that imported products cannot receive this additional incentive because they are not sourced from a California Supplier or manufactured in California. Although Measure 2 does not prohibit the installation of imported eligible distributed generation resources, in such cases, the additional 20% incentive payment provided under the California Manufacturer Adder is not available.

In our view, India's demonstration that the California Manufacturer Adder accords an advantage on the use of local products (i.e. eligible distributed generation resources under the 2016 SGIP Handbook, and generation and energy storage equipment under the 2017 SGIP Handbook) that is not available for the use of non-local products, including imported products is sufficient to make a prima facie case that the California Manufacturer Adder affects the sale, purchase, transportation, distribution or use of the relevant products.

We do not agree with the United States' argument that India should have demonstrated that the California Manufacturer Adder has had the effect of "inducing" buyers to "purchase" the eligible products of California-origin. As mentioned above⁴³³, we are of the view that India is not required to show that the measure at issue in fact has or had an impact on the relevant buyers, as suggested by the United States. Neither is India required under Article III:4 of the GATT 1994 to indicate the number of those who have been granted incentives under this program. As explained above, the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition between domestic and imported like products, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances". We consider that for India to make a prima facie case it suffices to show that the California Manufacturer Adder confers an advantage on the use of local products that it does not confer on the use of imported products.

For these reasons, we conclude that India has made a prima facie case, and the United States has not rebutted, that the California Manufacturer Adder "affect[s] the internal sale, offering for sale, purchase, transportation, distribution or use" of products within the meaning of Article III:4 of the GATT 1994.

According to India, the Montana tax incentive "provide[s] tax incentives (i.e. an advantage) based on the in-state manufacture level of ethanol, i.e. the higher the content of Montana agricultural products in the ethanol so produced, the higher is the tax incentive".⁴³⁴ On this basis, India concludes that the measure at issue "adversely modif[ies] the conditions of competition between the domestic and imported 'like products' and therefore 'affect[s]'" those products.⁴³⁵

The United States responds that "Montana Department of Transportation records indicate that no entity has availed [itself] of [the measure] since 1995".⁴³⁶ According to the United States, this "contradicts India's assertion that [the measure] ha[s] incentivized the use of products of Montana-origin". Further, in the United States' view, because incentivization "is the vector by which India claims" that the measure at issue affects products, India has "necessarily failed to establish that [the measure] has 'affect[ed]' the 'use' of products within the meaning of" Article III:4.⁴³⁷

As explained above⁴³⁸, the Montana tax incentive for ethanol production makes available tax incentives for ethanol production from Montana-origin ingredients. Although Measure 4 does not prohibit ethanol production from ingredients sourced outside Montana, such ethanol is not eligible to receive the tax incentive.⁴³⁹

In our view, India's demonstration that the Montana tax incentive confers an advantage on the use of domestic products (i.e. Montana-origin ingredients) that is not available for the use of imported products, is sufficient to make a prima facie case that the Montana tax incentive affects the sale, purchase, transportation, distribution or use of the relevant products.

We are cognizant that ethanol made from non-Montana ingredients may be eligible to receive the tax incentive if Montana ingredients are "not available".⁴⁴⁰ We do not, however, consider that this exception undermines or contradicts India's submission that, by conferring a benefit on the use of local products – where such are available in the market – that is not available for the use of imported products, the measure at issue has an impact on the conditions of competition and therefore affects the sale, purchase, transportation, distribution or use of the products within the meaning of Article III:4. We note, moreover, that the United States has not suggested that this exception would in itself have any bearing on the question whether the measure affects the sale, purchase, transportation, distribution or use of the relevant products.

Turning to the United States' argument that Montana Department of Transportation records show that no entity has claimed an incentive under the measure at issue since 1995, we note that India has not contested this assertion. Moreover, the Montana Department of Transportation Records file submitted by the United States in support of its position does appear to show payments only between 1992 and 1995, although it is not entirely clear to us whether the information reflected in this exhibit is comprehensive.⁴⁴¹

However, even if the United States' argument were factually correct, we do not consider that it would be capable of rebutting India's prima facie showing that the measure affects the sale, purchase, transportation, distribution or use of the relevant products. This is because, as explained above, the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition between domestic and imported like products, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances". In our view, the Montana tax incentive "involves formally different treatment of imported and domestic products albeit that the actual trade effects of this different treatment may be minimal under current circumstances".⁴⁴² Thus, in assessing whether the measure affects the sale, purchase, transportation, distribution or use of the relevant products, the question whether any person or enterprise has actually decided to take up that advantage is, in our view, beside the point.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Montana tax incentive "affect[s] the internal sale, offering for sale, purchase, transportation, distribution or use" of products'' within the meaning of Article III:4 of the GATT 1994.

India argues that the Montana tax credit for biodiesel blending storage provides an advantage "based on the use of Montana-origin feedstock for manufacturing biodiesel".⁴⁴³ More specifically, India submits that the Montana tax credit reduces the investment costs of eligible taxpayers, and therefore "alters the conditions of competition in favour of Montana-origin feedstock as well as biodiesel produced from Montana-origin feedstock".⁴⁴⁴ India concludes that the measure therefore "adversely modif[ies] the condition[s] of competition between the domestic and imported 'like products' and therefore 'affect' the internal sale, offering for sale, purchase and/or use of the imported 'like products'".⁴⁴⁵

The United States responds that "Montana Department of Transportation Records indicate that no taxpayer has sought to claim the Biodiesel Tax Credit since 2011".⁴⁴⁶ According to the United States, this "contradicts India's assertion that [the measure] ha[s] incentivized the use of products of Montana-origin".⁴⁴⁷ Further, in the United States' view, because incentivization "is the vector by which India claims" that the measure at issue affects products, India has "necessarily failed to establish that [the measure] has 'affect[ed]' the 'use' of products within the meaning of" Article III:4.⁴⁴⁸

As explained above⁴⁴⁹, the Montana tax credit makes available a "credit against [certain] taxes … for the costs of investments in depreciable property used for storing or blending biodiesel with petroleum diesel for sale".⁴⁵⁰ Such credits are, however, only available if the investment in respect of which the credit is claimed is "used primarily to blend petroleum diesel with biodiesel made entirely from Montana-produced feedstocks".⁴⁵¹ Tax-payers who blend petroleum diesel with biodiesel made entirely from Montana-produced feedstocks are entitled to the credit, whereas tax-payers who blend petroleum diesel with biodiesel made wholly or partly from feedstocks originating outside Montana are not eligible.

In our view, India's demonstration that the Montana tax credit confers an advantage on the sale, purchase, transportation, distribution or use of domestic products (i.e. Montana-origin feedstock and biodiesel made therefrom) that is not available for use of imported products is sufficient to make a prima facie case that the measure affects the sale, purchase, transportation, distribution or use of the relevant products.

We note that India has not contested the United States' arguments that Montana Department of Transportation Records indicate that no taxpayer has claimed the Montana tax credit since 2011. Moreover, the memorandum from the Montana Department of Revenue dated 16 April 2018, which the United States submitted in support of its position, does appear to show that no credits were paid between 2012 and 2016.⁴⁵² No data has been provided for 2017 and 2018.

However, even if the United States' argument was correct, we do not consider that it would be capable of rebutting India's prima facie showing that the measure affects the sale, purchase, transportation, distribution or use of the relevant products. This is because, as explained above, the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition between domestic and imported like products, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances". In our view, the Montana tax credit, "involves formally different treatment of imported and domestic products albeit that the actual trade effects of this different treatment may be minimal under current circumstances".⁴⁵³ Thus, in assessing whether the measure affects the sale, purchase, transportation, distribution or use of the relevant products, the question whether any person or enterprise has actually decided to take up that advantage is, in our view, beside the point.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Montana tax credit "affect[s] the internal sale, offering for sale, purchase, transportation, distribution or use" of products'' within the meaning of Article III:4 of the GATT 1994.

India submits that the Montana tax refund "provide[s] tax refund[] incentives (i.e. an advantage) based on the condition that biodiesel must be produced from ingredients originating in Montana". According to India, Measure 6 thus "adversely modif[ies] the conditions of competition between the domestic and imported 'like products' and therefore 'affects' the internal sale, offering for sale, purchase and/or use of the imported 'like products'".⁴⁵⁴

The United States responds that "Montana Department of Transportation records indicate that no taxpayer has ever applied for (much less received) the Biodiesel Refund".⁴⁵⁵ According to the United States, this "rebuts India's assertion that that the Biodiesel Refund has created a preference (i.e. 'incentivized') for biodiesel manufactured from Montana products".⁴⁵⁶ In the United States' view, because incentivization "is the vector by which India claims" that Measure 6 affects products, India has "necessarily failed to establish that [the measure] has 'affect[ed]' the 'use' of products within the meaning of" Article III:4.⁴⁵⁷

As explained above⁴⁵⁸, the Montana tax refund provides that "licensed distributors" are entitled to a refund of two cents per gallon on biodiesel "produced entirely from biodiesel ingredients produced in Montana".⁴⁵⁹ Additionally, the Montana tax refund provides for owners and operators of retail motor fuel outlets to receive a tax refund equal to one cent "on biodiesel on which the special fuel tax has been paid and that is purchased from a licensed distributor if the biodiesel is produced entirely from biodiesel ingredients produced in Montana".⁴⁶⁰

In our view, India's demonstration that the Montana tax refund makes an advantage available for the use of local products (i.e. ingredients of biodiesel and biodiesel made with such ingredients), whereas the same advantage is not available when imported or other non-local products are used, is sufficient to make a prima facie case that the Montana tax refund affects the sale, purchase, transportation, distribution or use of the relevant products.

We note that India has not contested the United States' argument that Montana Department of Transportation Records indicate that no taxpayer has ever claimed the tax refund for biodiesel. Moreover, we note that the Montana Department of Transportation's Report on Dyed Fuel Enforcement, dated 2016, which the United States submitted in support of its position, does indeed state that "[t]he department has never had any person apply for" the tax refund for biodiesel.⁴⁶¹ This indicates that, at least until 2016 (the year in which the report was produced), no person had taken advantage of the incentives made available by Measure 6.

Importantly, however, even if the United States' argument were factually correct, we do not consider that it would be capable of rebutting India's prima facie case that the measure affects the sale, purchase, transportation, distribution or use of the relevant products. This is because, as explained above, the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition between domestic and imported like products, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances". In our view, the Montana tax refund "involves formally different treatment of imported and domestic products albeit that the actual trade effects of this different treatment may be minimal under current circumstances".⁴⁶² Thus, in assessing whether the measure affects the sale, purchase, transportation, distribution or use of the relevant products, the question whether any person or enterprise has actually decided to take up that advantage is, in our view, beside the point.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Montana tax refund "affect[s] the internal sale, offering for sale, purchase, transportation, distribution or use" of products'' within the meaning of Article III:4 of the GATT 1994.

India submits that Measure 7, which is part of the broader Connecticut Residential Solar Investment Program (CRSIP), "provide[s] additional incentives (i.e. an advantage) if the major system components of a solar photovoltaic (PV) system are manufactured or assembled in [Connecticut]". According to India, it follows that Measure 7 "clearly adversely modif[ies] the conditions of competition … between domestic and imported like products and therefore 'affect[s]' the internal sale, offering for sale, purchase, and/or use of the imported like products".⁴⁶³

The United States responds that "India has provided no evidence to substantiate its suggestion that the [measure at issue] has played a 'decisive' role in inducing consumers to 'purchase' or 'use' renewable energy components manufactured in Connecticut".⁴⁶⁴ According to the United States, the evidence submitted by India to establish that payments have been made under Measure 7 do "not support India's assertions"⁴⁶⁵ for two reasons.

First, according to the United States, the figures cited by India do not make clear what proportion of the PV systems that received incentives were manufactured in or contained components manufactured in Connecticut.⁴⁶⁶ In this connection, the United States argues that India's figures relate to funds disbursed by the Green Bank, whereas in fact "the Green Bank does not have legal authority to [grant the challenged additional incentives] under [the] applicable Connecticut Statute".⁴⁶⁷ Thus, in the United States' view, none of the grants recorded in the evidence submitted by India could have been "linked to the purchase or use of Connecticut-manufactured solar PV systems or components".⁴⁶⁸

Additionally, the United States argues that although Measure 7 gives the Connecticut Public Utilities Regulatory Authority (PURA) the authority to grant an additional incentive of up to 5% for solar PV systems or components manufactured in Connecticut, it does not require PURA to do so.⁴⁶⁹ The United States notes that the relevant provision of the measure at issue states that PURA "shall provide an additional incentive of up to five per cent of the then-applicable incentive"⁴⁷⁰, and submits that the phrase "up to" indicates that PURA "has the discretion to grant zero additional incentive".⁴⁷¹ In the United States' view, "if a challenged measure provides discretion to administering authorities to act in a WTO-consistent manner, then the legislation cannot, 'as such', violate the Member's WTO obligations".⁴⁷² According to the United States, however, India has not shown that the measure mandates the disbursement of additional incentives.⁴⁷³ In particular, the United States submits that India has not adduced any evidence demonstrating that "PURA has issued rules, regulations, or guidelines … much less ever made the incentive available to Connecticut homeowners pursuant to its discretionary authority".⁴⁷⁴ Accordingly, in the United States' view, "India has failed to demonstrate that the [measure at issue] is (or has ever been) legally capable of 'affecting' the 'purchase' or 'use' of products within the meaning of Article III:4" of the GATT 1994.⁴⁷⁵

As explained above⁴⁷⁶, the CRSIP makes available two kinds of financial incentives: performance-based incentives (PBI), which are available to homeowners who acquire a solar PV system under a third-party financing structure (i.e. by way of a lease or a power purchase agreement), and expected performance-based buydowns (EPBB), which are available to homeowners who purchase a solar PV system from an Eligible Contractor.⁴⁷⁷ As a general matter, these incentives are paid at rates determined and published by the Connecticut Green Bank.⁴⁷⁸ Under the CRSIP, PURA may make available additional incentives of up to 5% of the ordinarily available incentive⁴⁷⁹ for the use of "major system components manufactured or assembled in Connecticut", and another additional incentive of up to 5% of the ordinarily available incentive may be made available "for the use of major system components manufactured or assembled in a distressed municipality … or a targeted investment community".⁴⁸⁰ Thus, Measure 7 provides additional incentives where PV systems contain "major system components" manufactured or assembled locally.

In our view, India's demonstration that the Connecticut additional incentive provides an advantage for the use of local products but not for the use of imported or other non-local products is sufficient to make a prima facie case that the measure affects the sale, purchase, transportation, distribution or use of the relevant products.

As noted, the United States has attempted to rebut India's case with two arguments. First, the United States argues that the measure allows but does not mandate the provision of any additional incentives. This is so because, according to the United States, the relevant provision of the CRSIP provides that PURA shall provide additional incentives of "up to" 5%, and the use of the term "up to" implies that PURA may decide to pay an additional incentive of 0%. Second, the United States argues that the data submitted by India does not show that any additional incentive payments have in fact been made.

We agree with the United States that, if the measure at issue simply granted PURA discretionary authority to make additional incentives available for the use of local content, this may raise a question about whether the text of the measure would, without more, be sufficient to establish that the measure affects the sale, purchase, transportation, distribution or use of products within the meaning of Article III:4. In our view, however, we are not confronted with such a situation in the present case.

To recall, Section 16-245ff(i) of the General Statutes of Connecticut provides that PURA "shall provide an additional incentive of up to five per cent of the then-applicable incentive …".⁴⁸¹ As noted, the United States submits that the use of the phrase "up to" indicates that PURA could set the additional incentive rate at 0%. We find this argument difficult to accept. The term "up to" means "as high or as far as".⁴⁸² It does not relate to the base or starting point from which a thing (such as the rate of a payment) begins to ascend "up to" a certain higher point. Thus, as we understand it, the use of the term "up to" in Section 16-245ff(i) simply means that PURA may set additional incentives as high as 5%, but no higher. It does not shed light on whether PURA could set the incentive rate at 0%, or whether PURA is required or only permitted to disburse the additional incentive.

Moreover, we find the United States' position difficult to reconcile with the statute's use of the term "shall". As past panels have noted, the term "shall" "denotes a requirement that is obligatory in nature and that goes beyond mere encouragement".⁴⁸³ This is consistent with the ordinary meaning of the term as reflected in the Oxford English Dictionary, which defines the word "shall" as relating, inter alia, to a "command".⁴⁸⁴ We consider that Section 16-245ff(i) commands, requires, or obligates PURA to make additional incentives available. In this sense, it does not simply allow or enable PURA to disburse additional incentives, but requires it to make such additional incentives available. Moreover, in our view, such a command would not be fulfilled if PURA were to set the additional incentive at 0%. To set the rate at 0% would, in effect, be not to grant an additional incentive at all, and thus not to conform to the obligation imposed by the plain language of Section 16-245ff(i).

Accordingly, we do not consider that the ordinary meaning of the text supports the United States' view that, under the CRSIP, PURA may set an additional incentive of 0%, and that India has therefore failed to establish that the measure is legally capable of affecting the purchase or use of products within the meaning of Article III:4. To the contrary, as we read it, the text of Section 16-245ff(i) requires PURA to set a level of additional incentives no higher than 5% of the applicable base rate, but more than 0%. This is so because a rate of 0% would mean that, in effect, no incentive is made available. Setting a rate of 0% would therefore be contrary to the plain words of the relevant provision. Because the provision requires a level of additional incentives to be set, we do not consider that the so-called mandatory/discretionary principle raised by the United States⁴⁸⁵ is implicated in our analysis of Measure 7.

This brings us to the United States' second argument, namely, that the data submitted by India does not show that additional incentive payments have been made. We note, however, that India did not adduce these data in the specific context of its claim that Measure 7 affects the sale, purchase, transportation, distribution or use of the relevant products within the meaning of Article III:4, but rather in its more general description of this measure. Accordingly, we do not consider that India intended to rely on this evidence as an essential element of its argument that Measure 7 affects the sale, purchase, transportation, distribution or use of the relevant products. Nor do we think that India needed to do so. As we have explained, the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances".

Accordingly, even if the United States' argument were correct and it were accepted that the evidence submitted by India does not show that additional incentives have been paid, this would, in our view, be insufficient to rebut India's prima facie case based on the text of Measure 7. This is because, as explained above, the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition between domestic and imported like products, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances". In our view, the Connecticut additional incentive "involves formally different treatment of imported and domestic products albeit that the actual trade effects of this different treatment may be minimal under current circumstances".⁴⁸⁶ Thus, in assessing whether Measure 7 affects the sale, purchase, transportation, distribution or use of the relevant products, the question whether any person or enterprise has actually decided to take up that advantage is, in our view, beside the point.

This logic also leads us to conclude that we need not determine, for the purposes of resolving this claim, whether the Green Bank is authorized to make additional incentive payments, as India argues. What matters for the purposes of the present claim is the existence of a measure that accords, on its face, formally different treatment to imported and domestic products⁴⁸⁷, and thus impacts the conditions of competition, and not whether that measure has or is actually having market effects, including by influencing the purchasing decisions of private firms. In our view, therefore, details concerning the internal administration of the additional incentive, such as the precise identity of the entity authorized to pay it, are not determinative of whether the measure affects the sale, purchase, transportation, distribution or use of the relevant products.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Connecticut additional incentive "affect[s] the internal sale, offering for sale, purchase, transportation, distribution or use" of products within the meaning of Article III:4 of the GATT 1994.

India submits that the Renewable Energy Standards Program in the State of Michigan (RESPM) "provide[s] higher incentives (i.e. an advantage) based on the in-state manufacture level of the renewable energy system". According to India, this necessarily means that Measure 8 "adversely modif[ies] the conditions of competition between domestic and imported 'like products' and therefore 'affect[s]' the internal sale, offering for sale, purchase[,] and/or use of the imported 'like products'".⁴⁸⁸

The United States submits that the evidence submitted by India shows that renewable energy credits (RECs) issued pursuant to the Michigan Equipment Multiplier "have accounted for only 0.0000878% of all RECs generated since" the RESPM entered into force in 2009. According to the United States⁴⁸⁹, this "rebuts any suggestion that [the] Michigan Equipment Multiplier has 'induced' (i.e. incentivized) buyers to 'purchase' or 'use' renewable energy systems made in Michigan as opposed to imported like products".⁴⁹⁰ The United States argues that because incentivization "is the vector by which India claims" that the measure at issue affects products, India has "necessarily failed to establish that [the measure] has 'affect[ed]' the 'use' of products within the meaning of" Article III:4.⁴⁹¹

As explained above⁴⁹², the RESPM requires electric providers to maintain renewable energy credit portfolios. Electric providers obtain RECs by generating or purchasing renewable energy, at a rate of one credit per megawatt hour of electricity generated from each of their renewable energy systems.⁴⁹³ However, additional RECs are available per megawatt hour produced from renewable energy systems constructed using (i) equipment made in Michigan (Michigan Equipment Multiplier)⁴⁹⁴; or (ii) a workforce composed of residents of Michigan (Michigan Labour Multiplier).⁴⁹⁵ Such additional RECs are not available for energy produced using a renewable energy system made wholly or partly from equipment manufactured outside of Michigan, or constructed by non-Michigan workforce.

In our view, India's demonstration that the Michigan Equipment and Labour Multipliers make an advantage available for the use of local products (i.e. renewable energy systems manufactured using Michigan-origin components or by a workforce made up of Michigan residents), whereas the same advantage is not available when imported or other non-local products are used, is sufficient to make a prima facie case that the Michigan Equipment and Labour Multipliers affect the sale, purchase, transportation, distribution or use of the relevant products.

India has not contested the United States' assertion that the evidence on the record shows that only a miniscule number of RECs generated under the RESPM (some 0.0000878%) have been issued pursuant to the Michigan Equipment Multiplier. In our view, the evidence relied upon by both parties, the Michigan Public Service Commission's Annual Report of Implementation of PA 295 Renewable Energy Standard and the Cost-Effectiveness of Energy Standards, is somewhat unclear, because although it contains the graphs relied upon by the United States in support of its position, it also contains a series of pie charts that appear to show that between 2009 and 2015 an average of 10% of annual RECs were generated as "incentive" RECs.⁴⁹⁶ Moreover, the aforementioned Annual Report states that "[i]t appears that Michigan's incentive REC provision is meeting its intended purpose to encourage developers to maximize utilization of Michigan equipment and labour".⁴⁹⁷ We are not entirely clear how to reconcile these pie charts and this statement with the United States' argument that the report indicates that only a tiny fraction of a per cent of all RECs have been generated pursuant to the challenged incentives.

However, even if the United States' argument were correct, we do not consider that it would be capable of rebutting India's prima facie showing that the Multipliers affect the sale, purchase, transportation, distribution or use of the relevant products. This is because, as explained above, the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition between domestic and imported like products, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances". In our view, the Michigan Equipment and Labour Multipliers "clearly involve[] formally different treatment of imported and domestic products albeit that the actual trade effects of this different treatment may be minimal under current circumstances".⁴⁹⁸ Thus, in assessing whether the Multipliers affect the sale, purchase, transportation, distribution or use of the relevant products, the question whether any person or enterprise has actually decided to take up that advantage is, in our view, beside the point.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Michigan Equipment Multiplier and the Michigan Labour Multiplier "affect the internal sale, offering for sale, purchase, transportation, distribution or use" of products within the meaning of Article III:4 of the GATT 1994.

India submits that both the Delaware Equipment and Workforce Bonuses "provide higher incentives (i.e. an advantage) based on the in-state manufacture level of the specified renewable energy equipment".⁴⁹⁹ India contends that, as a result, the conditions of competition between domestic and imported like products are modified to the detriment of the latter, and therefore both the Delaware Equipment and Workforce Bonuses affect the sale, purchase, transportation, distribution or use of the relevant products.⁵⁰⁰

The United States responds that "India has failed to demonstrate that the Delaware Equipment Bonus incentivizes the 'purchase' of renewable energy products manufactured in Delaware."⁵⁰¹ According to the United States, "India has failed to demonstrate that RECs [renewable energy credits] associated with the 'Delaware Equipment Bonus' (i.e., 'Bonus RECs') in particular are tradable instruments or have independent monetary value."⁵⁰² The United States supports its view with reference to the language of the provision setting forth the Delaware Equipment Bonus⁵⁰³, which establishes that retail electricity suppliers shall receive an additional 10% credit "toward meeting the renewable energy portfolio standards…".⁵⁰⁴ For the United States, this shows that "retail electricity suppliers cannot trade Bonus RECs for monetary value, but use them only for purposes of satisfying their obligations under Delaware's [renewable energy portfolio standards]".⁵⁰⁵

Furthermore, the United States submits that India has failed to demonstrate that "the prospect of receiving Bonus RECs incentivizes retail electricity suppliers to purchase renewable energy generation equipment made in Delaware."⁵⁰⁶ In that respect, the United States is of the view that the Delaware Equipment Bonus cannot incentivize the purchase or use of equipment manufactured in Delaware because it is granted to retail electricity suppliers that do not generate power but only distribute it. The United States indicates that the Delaware Equipment Bonus is not addressed to "generation units", which are the ones generating power and making purchasing decisions as to renewable energy generation equipment.⁵⁰⁷

Finally, the United States notes that "'[s]olar panels are no longer manufactured in Delaware' and have not been produced in Delaware since 2013".⁵⁰⁸ As argued with respect to other measures at issue, the United States considers that "[b]ecause incentivization is the vector by which India claims that Delaware Equipment Bonus 'affects' the 'purchase' or 'use' of products within the meaning of Article III:4, India has necessarily failed to establish that the Bonus 'affects' the 'use' of products".⁵⁰⁹

As explained above⁵¹⁰, the Delaware Renewable Energy Portfolio Standards Act (REPSA) provides retail electricity suppliers with an additional 10% credit toward meeting the renewable energy portfolio standards for solar or wind energy installations, provided that a minimum of 50% of the cost of renewable energy equipment, inclusive of mounting components, are manufactured in Delaware (the Delaware Equipment Bonus), or that the facility is constructed or installed with a minimum of 75% in-state workforce (the Delaware Workforce Bonus). These bonuses can be applied cumulatively. The measure does not require the use of renewable energy equipment at least partially (50%) manufactured in Delaware or facilities constructed by a Delaware-based workforce, but in the absence of such equipment or facilities, no additional credits will be generated.

In our view, India's demonstration that the Delaware Equipment and Workforce Bonuses make an advantage available for the use of local products (i.e. renewable energy equipment manufactured using Delaware-origin inputs or by a workforce made up of Delaware residents), whereas the same advantage is not available when imported products are used, is sufficient to make a prima facie case that the measure affects the sale, purchase, transportation, distribution or use of the relevant products.

Turning to the United States' argument that India has failed to demonstrate that the RECs are tradable instruments or have independent monetary value, we start by noting that, as indicated by the United States, retail electricity suppliers may use RECs and solar renewable energy credits (SRECs) to secure compliance with the renewable energy portfolio standards established pursuant to the relevant subchapter of the Delaware Code.⁵¹¹ The Delaware Code also provides in its Section 360(a) for the possibility for retail electricity suppliers to "sell or transfer any [REC] or [SREC] not needed to meet said standards".⁵¹² Therefore, we do not agree with the United States' argument that retail electricity suppliers can use their RECs or SRECs "only for purposes of satisfying their obligations under Delaware's [renewable energy portfolio standards]".⁵¹³ In light of the text of Section 360(a) of the Delaware Code, it is clear to us that retail electricity suppliers are allowed to sell or transfer any RECs or SRECs they may not need to achieve their renewable energy portfolio standards. The reference in Sections 356(d) and (e) of the Delaware Code to "additional 10% credit toward meeting the renewable energy portfolio standards" does not preclude the possibility, in our view, of retail electricity suppliers selling or transferring the RECs or SRECs not needed in order to meet the standard. We consider that any potential derogation of such possibility would have been explicitly provided by the legislator.

Moreover, there is considerable evidence on the record that supports our view that RECs and SRECs are tradable instruments with monetary value. First, the Delaware Code defines both RECs and SRECs as "tradable instrument[s]".⁵¹⁴ Second, India has provided a number of exhibits referring to the establishment of a market to trade such instruments, as well as detailed regulations governing the procurement process. By way of example, we find numerous references in the REPSA⁵¹⁵ to the existence of a market where RECs can be transferred or sold among retail electricity suppliers.⁵¹⁶ We further find on the record exhibits explaining how to sell RECs⁵¹⁷, as well as recommendations of the renewable energy taskforce on the State of Delaware Pilot Program for the Procurement of SRECs where prices per SREC are listed.⁵¹⁸ In light of the evidence provided, we conclude that RECs and SRECs have monetary value and can be traded.

We now move on to the United States' argument that India has failed to prove that the Delaware Bonuses incentivize the purchase of renewable energy generation equipment of Delaware origin because they are addressed to entities (i.e. retail electricity suppliers) that do not generate electricity but only distribute it. We first note that, as the United States argues, retail electricity suppliers do not generate electricity. The Delaware Code defines "retail electricity supplier" as "a person or entity that sells electrical energy to end-use customers in Delaware, including but not limited to non-regulated power producers, electric utility distribution companies supplying standard offer, default service, or any successor service to end-use customers."⁵¹⁹ We further note that, despite the fact that generation units can be entitled to RECs and SRECs under certain circumstances⁵²⁰, the text of the Delaware Bonuses explicitly identifies retail electricity suppliers as the only potential recipients of the 10% additional credits.⁵²¹

Nevertheless, we note that Measure 9 makes additional credits available to electricity distributors who distribute electricity generated using local equipment. In other words, electricity distributors receive extra credits when they distribute such energy, but do not receive these credits if and when they distribute energy generated using non-local, including imported equipment. In our view, the measure thus formally treats local and imported equipment differently, and therefore has an impact on the conditions of competition in the market for the equipment itself. The fact that the electricity distributors who are entitled to receive the benefit are not themselves generating electricity is beside the point.

Finally, we are of the view that the United States' argument with respect to the absence of solar panel manufacturing activity in Delaware since 2013 cannot rebut India's prima facie case that the Delaware Bonuses affect the purchase and use of the relevant products. First, the Delaware Equipment Bonus and the Delaware Workforce Bonus encompass both solar and wind energy installations.⁵²² Thus, these additional credits do not just relate to "solar panels", but also to wind energy installations as well as solar energy installations other than "solar panels". Additionally, we recall that the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition between domestic and imported like products, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances". In our view, the Delaware Equipment and Workforce Bonuses "clearly involve[] formally different treatment of imported and domestic products albeit that the actual trade effects of this different treatment may be minimal under current circumstances".⁵²³ Therefore, in assessing whether the Delaware Equipment Bonus and the Delaware Workforce Bonus affect the internal sale, offering for sale, purchase, transportation, distribution or use" of the relevant equipment in the Delaware market, the fact that solar panels have not been produced in Delaware since 2013 is beside the point.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Delaware Equipment Bonus and the Delaware Workforce Bonus "affect[] the internal sale, offering for sale, purchase, transportation, distribution or use" of products'' within the meaning of Article III:4 of the GATT 1994.

India argues that the Minnesota solar energy incentive program (SEPI) and the Minnesota solar photovoltaic (PV) rebate are granted "if the specified products (i.e. solar PV modules …) are manufactured in Minnesota".⁵²⁴ India considers that these advantages "clearly adversely modify the conditions of competition between domestic and imported like products and therefore 'affect' the internal sale, offering for sale, purchase and/ or use of the imported like products".⁵²⁵

The United States responds that India has failed to demonstrate that these programs under Measure 10 incentivize the use or purchase of solar products of Minnesota origin.⁵²⁶ In particular, the United States refers to a graph from a 2016 Minnesota Department of Revenue (DOR) press release in which the figures show that "solar installations that received incentives under the Solar PV Incentive program accounted for less than three per cent of all solar installations in Minnesota during 2016".⁵²⁷ As for the Minnesota solar PV rebate, the United States argues that, "[s]ince incentivization is the vector by which India claims that this measure 'affects' the 'purchase' or 'use' of products… India has necessarily failed to establish that [it] 'affects' the 'use' of products" within the meaning of Article III:4.⁵²⁸

As explained above⁵²⁹, the SEPI and the Minnesota solar PV rebate grant incentives and rebates for the use of solar PV modules made in Minnesota. Although use of non-local, including imported, solar PV modules is not prohibited or otherwise limited, we note that, where such modules are used, the financial incentives and rebates set forth in Sections 216C.411 - 415 and 116C.7791 of the 2016 Minnesota Statutes are not provided, given that such modules do not fulfil the requirement of having been manufactured in Minnesota.

In our view, India's demonstration that these two programs under Measure 10 confer an advantage on the use of relevant domestic products (i.e. solar PV modules) that is not available for the use of the relevant like imported products is sufficient to make a prima facie case that the measure affects the sale, purchase, transportation, distribution or use of the relevant products.

We now turn to the United States' argument relating to the "negligible amount" of solar installations that received incentives under the SEPI during 2016.⁵³⁰ As noted above, the United States submits that less than 3% of all solar installations in Minnesota during 2016 received incentives under the SEPI. We note that India has not contested this argument, and indeed the chart in the DOR press release indicates the number of applicants and projects funded for each investor-owned electric utilities (Xcel Energy, Minnesota Power, and Otter Tail Power) under the SEPI.⁵³¹

We do not consider that this argument by the United States is capable of rebutting India's prima facie showing that the measure affects the relevant products. This is because, as explained above, the relevant question at this point of our analysis is whether the measure has an impact on the conditions of competition between domestic and imported like products, not whether or the extent to which it has or is actually influencing the purchasing decisions of private firms "under current circumstances". In our view, the SEPI and the Minnesota solar PV rebate "involve[] formally different treatment of imported and domestic products albeit that the actual trade effects of this different treatment may be minimal under current circumstances".⁵³² Thus, in assessing whether these two programs affect the sale, purchase, transportation, distribution or use of the relevant products, the question whether many or few projects have benefitted from the advantage, or the extent to which they have done so is, in our view, beside the point.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the SEPI and the Minnesota solar PV rebate under Measure 10 "affect[] the internal sale, offering for sale, purchase, transportation, distribution or use" of products within the meaning of Article III:4 of the GATT 1994.

In conclusion, we find that India has shown prima facie, and the United States has not rebutted, that each of the measures at issue is a "law", "regulation" or "requirement" "affecting the[] internal sale, offering for sale, purchase, transportation, distribution or use" of the relevant products within the meaning of Article III:4 of the GATT 1994.

India argues that the measures at issue accord treatment less favourable to imported products than to like domestic products by incentivizing the use of domestic inputs and thereby denying effective equality of opportunity to the imported products to compete in the domestic market.⁵³³ India further argues that the measures at issue do not provide equality of opportunity to the imported products to compete in the domestic market, and that they also modify the conditions of competition in the relevant domestic market to the detriment of imported products.⁵³⁴

The United States argues that "if a measure does not 'affect' the use … of a product, it is difficult to see how the measure could 'modify the conditions of competition' with respect to that product on the market" in such a way as to give rise to less favourable treatment.⁵³⁵ According to the United States, since in this case India has failed to show that any of the measures affect the sale, purchase, transportation, distribution or use of a product, it has necessarily failed to show that they modify the conditions of competition.⁵³⁶

According to the Appellate Body, the term "treatment no less favourable" "requires effective equality of opportunities for imported products to compete with like domestic products".⁵³⁷ Thus, the question "[w]hether or not imported products are treated 'less favourably' than like domestic products should be assessed … by examining whether a measure modifies the conditions of competition in the relevant market to the detriment of imported products"⁵³⁸ or, in other words, whether any "regulatory differences distort the conditions of competition to the detriment of imported products".⁵³⁹

We agree with the United States that, in principle, it is difficult to see how a measure could accord less favourable treatment to imported than to domestic products without it affecting the sale, purchase, transport, distribution or use of such products. We recall, however, that less favourable treatment and the affecting standard are two distinct elements of the legal test under Article III:4 of the GATT 1994, and raise related but different considerations. The question whether a measure affects the sale, purchase, transportation, distribution or use of products concerns whether the challenged measure impacts the conditions of competition⁵⁴⁰, whereas less favourable treatment focuses on whether the challenged measure modifies the conditions of competition to the detriment of imported products.⁵⁴¹

Importantly, in the context of less favourable treatment, the Appellate Body has repeatedly emphasized that an assessment under Article III:4 of the GATT 1994 "may well involve – but does not require – an assessment of the contested measure in the light of evidence regarding the actual effects of that measure in the market".⁵⁴² A finding of less favourable treatment therefore "need not be based on the actual effects of the contested measure in the marketplace".⁵⁴³ Moreover, "it does not require demonstration of trade effects, nor proof that the sourcing decisions of private firms have actually been impacted by" the measure at issue.⁵⁴⁴ Indeed, the Appellate Body has underscored that "it is irrelevant that the trade effects of [a challenged measure], as reflected in the volumes of imports, are insignificant or even non-existent".⁵⁴⁵ This is so because "Article III protects expectations not of any particular trade volume but rather of the equal competitive relationship between imported and domestic products."⁵⁴⁶

Thus, a panel should attempt to discern "[t]he implications of the contested measure for the equality of competitive conditions … first and foremost"⁵⁴⁷ by engaging in "careful scrutiny of the measure, including consideration of the design, structure, and expected operation of the measure at issue".⁵⁴⁸ This "careful examination" must be "grounded in close scrutiny of the fundamental thrust and effect of the measure itself".⁵⁴⁹ To succeed, a claim of less favourable treatment "cannot rest on simple assertion", but "will normally require further identification or elaboration of [the challenged measure's] implications for the conditions of competition".⁵⁵⁰

We note that, throughout these proceedings, the United States has argued that, although India is not required "to proffer empirical evidence that the measures at issue have incentivized the purchase or use domestic products", it does "bear the burden of demonstrating that the challenged measures are bound or likely to have such incentivizing effects".⁵⁵¹ In our view, however, a complainant need not show that a challenged measure is "bound or likely" to modify the conditions of competition to the detriment of imported products in order to establish the existence of less favourable treatment. To the contrary, the Appellate Body has held that "an analysis of less favourable treatment should not be anchored in an assessment of the degree of likelihood that an adverse impact on competitive conditions will materialize"⁵⁵², and both GATT⁵⁵³ and WTO panels have explained that "a measure can be found to be inconsistent with Article III:4 because of its potential discriminatory impact on imported products".⁵⁵⁴ As we understand it, therefore, a complainant is not required to quantify the likelihood that a challenged measure will in fact have a detrimental impact on imported products in order to make a prima facie case of less favourable treatment. Rather, the focus of the analysis is on the implications of the measure for the market, as they are discernible from the "design, structure, and expected operation of the measure".⁵⁵⁵

With these considerations in mind, we turn to examine each of the challenged measures to determine whether they accord to imported products treatment less favourable than that accorded to like products of national origin.

India submits that the Washington State additional incentive accords less favourable treatment to imported products vis-à-vis domestic like products "by incentivizing the use of the specified components manufactured in Washington and thereby denying the effective equality of opportunity to the imported products to compete in the domestic market of Washington".⁵⁵⁶ India argues that the economic development factor applied on the incentive base rate to calculate the incentive payment is higher "when compared to same components manufactured outside Washington", thereby resulting in a higher incentive payment.⁵⁵⁷ According to India, Measure 1 will lead buyers to prefer specified products manufactured in Washington over like imported products.⁵⁵⁸

The United States responds that "India [has not] provided evidence that demonstrates that the measure at issue has modified the 'conditions of competition' in Washington's market for renewable energy products 'to the determinant [sic]of imported products'".⁵⁵⁹ In the United States' view, since India has failed to establish that the measures affect the sale, purchase, transportation, distribution or use of the relevant products, it has "failed to demonstrate that the measures at issue 'modify the conditions of competition' between imported and domestic products in Washington."⁵⁶⁰

As noted above⁵⁶¹, the Washington State additional incentive is provided for customer-generated electricity produced using solar inverters, solar modules, stirling converters, or wind blades manufactured in Washington State.

As India argues, and as we have found, Measure 1 provides for an additional incentive by applying a higher economic development factor on the incentive base rate when, and to the extent that, eligible equipment includes solar inverters, solar modules, stirling converters, and wind blades manufactured in Washington State.⁵⁶² Looking at the text, design, and structure of the measure, we note that the economic development factors for equipment manufactured in Washington State range from 2.4 to 1, whereas the factor for any equipment used to produce energy by wind, regardless of its origin, is 0.8, and no factor is applied on the incentive base rate in case of non-local (including imported) solar modules or stirling converters.⁵⁶³ The "fundamental thrust and effect"⁵⁶⁴ of the challenged measure is thus to tie the amount of the final incentive payment to the use of certain Washington State-origin equipment. The higher the level of local content used, the higher the incentive provided.

On this basis, we consider that India has shown prima facie that the Washington State additional incentive modifies the conditions of competition in favour of Washington-made solar inverters, solar modules, stirling converters, and wind blades by creating a financial incentive favouring made-in-Washington-State like products.⁵⁶⁵ We recall in this connection that past cases have consistently held that the provision of incentives or advantages for the use of domestic over imported products accords less favourable treatment to such imported products.⁵⁶⁶

As noted, the United States' primary response to India's claim is that, because India has failed to show that Measure 1 affects the sale, purchase, transportation or use of the relevant products, it follows that it has also failed to show that the measure accords treatment less favourable to imported than to domestic products.⁵⁶⁷

We have already found that, because it provides an advantage for the use of domestic products but not for the use of imported products, and thus impacts the conditions of competition between imported and domestic products, Measure 1 does affect the sale, purchase, transportation, distribution or use of the relevant products.⁵⁶⁸ Moreover, as explained above, in our view the question whether a measure accords treatment less favourable to imported products is distinct from the question whether it affects the sale, purchase, transport, distribution or use of such products. It follows that the United States' argument in this regard is not capable of rebutting India's prima facie case that Measure 1 accords less favourable treatment to imported than to domestic products.

We recall the United States' argument, in the context of whether the measure affects the sale, purchase, transportation, distribution or use of products, that the figures provided by India do not support its assertion that the exponential growth of solar PV systems in Washington State between 2005 and 2015 is due, or somehow related, to the provision of the Washington State additional incentive. We have discussed this evidence above.⁵⁶⁹ In the context of the claim before us, and insofar as this argument might be relied upon to argue that the measure does not accord less favourable treatment, it suffices to recall that past cases have consistently held that neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary to make out a case of less favourable treatment.⁵⁷⁰ In the present dispute, the implications of Washington State additional incentive for competitive conditions are explicit from the text, design, and structure of the relevant provisions. To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found arises by necessary implication from the words actually used in the text" of the measure at issue.⁵⁷¹ Accordingly, we do not consider that evidence showing that the measure may have had minimal or no market effects in recent years, even if accepted, would be sufficient to rebut India's prima facie case that the Washington State additional incentive treats non-local products, including imported products, less favourably than like local products.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Washington State additional incentive modifies the conditions of competition to the detriment of imported solar inverters, solar modules, stirling converters, and wind blades, and therefore accords less favourable treatment to such products within the meaning of Article III:4 of the GATT 1994.

India submits that the California Manufacturer Adder accords less favourable treatment to imported products than to like domestic products. According to India, by "incentivizing the use of the eligible equipment that meet the in-state manufacturing level" required, the measure at issue "den[ies] the effective equality of opportunity to the imported products to compete in the domestic market of California".⁵⁷² India argues that the additional incentive for the use of eligible equipment manufactured in California, provided that either the California Supplier requirement (under the 2016 California Self-Generation Incentive Program (SGIP) Handbook) or the California Manufacturer requirement (under the 2017 SGIP Handbook) are met, modifies the conditions of competition to the detriment of the imported 'like products' because "a potential buyer will prefer to purchase the 'eligible equipment' satisfying the California Manufacturer or California Supplier criteria … over those which are imported."⁵⁷³

The United States responds that, insofar as India has failed to show that the measure at issue affects the sale, purchase, transportation, distribution or use of the relevant products, India has "consequently" failed to show that the measure modifies the conditions of competition to the detriment of imported products and thus accords less favourable treatment to such products.⁵⁷⁴ The United States adds that India has not provided "evidence demonstrating that the availability of the SGIP Adder otherwise operates to modify the 'conditions of competition' in the market for renewable energy equipment in California 'to the determinant [sic] of imported products.'"⁵⁷⁵

As explained above⁵⁷⁶, the California Manufacturer Adder consists of an additional 20% incentive payment for the installation of eligible distributed generation or Advanced Energy Storage (AES) technologies "from a California Supplier" (under the 2016 SGIP Handbook) or certain generation and energy storage equipment "manufactured in California" (under the 2017 SGIP Handbook).

As India argues, and as we have found, the measure at issue provides for an additional incentive for the installation of certain equipment to the extent that this equipment is "from a California Supplier" or "manufactured in California".⁵⁷⁷ Looking at the text, design, and structure of the California Manufacturer Adder, we note that the definitions of both "California Supplier" under the 2016 SGIP Handbook and "California Manufacturer" under the 2017 SGIP Handbook leave no doubt that non-local products, including imported products, will under no circumstances qualify for the California Manufacturer Adder, since these definitions contain requirements regarding the location of the manufacturing facility and the residence of its workers, among others.⁵⁷⁸ In fact, the 2017 SGIP Handbook explicitly requires that "at least 50% of the capital equipment value of the eligible distributed generation resources must be manufactured by an approved 'California Manufacturer'".⁵⁷⁹ Thus, the "fundamental thrust and effect"⁵⁸⁰ of the challenged measure is to tie the granting of the additional incentive to the use of equipment manufactured in California.

On this basis, we consider that India has shown prima facie that the California Manufacturer Adder modifies the conditions of competition in favour of California-origin⁵⁸¹ eligible equipment⁵⁸² by creating a financial incentive favouring products of California origin.⁵⁸³ In this connection, we recall that past cases have consistently held that the provision of incentives or advantages for the use of domestic over imported products accords less favourable treatment to such imported products.⁵⁸⁴

As noted, the United States' primary response to India's claim is that, because India has failed to show that Measure 2 affects the sale, purchase, transportation or use of the relevant products, it follows that it has also failed to show that the measure accords treatment less favourable to imported than to domestic products.⁵⁸⁵

We have already found that, because it provides an advantage for the use of domestic products but not for the use of imported products, and thus impacts the conditions of competition between imported and domestic products, Measure 2 does affect the sale, purchase, transportation, distribution or use of the relevant products.⁵⁸⁶ Moreover, as explained above, in our view the question whether a measure accords treatment less favourable to imported products is related to, but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of products. It follows that the United States' argument in this regard is not capable of rebutting India's prima facie case that Measure 2 accords less favourable treatment to imported than to domestic products.

We also recall that, as discussed above, we do not agree with the United States' argument, made in the context of the affecting standard, that India should have demonstrated that the California Manufacturer Adder has actually had the effect of "inducing" buyers to "purchase" the relevant products of California-origin. In the context of the claim before us, and insofar as this argument might be relied upon to argue that the measure does not accord less favourable treatment, it suffices to note that past cases have consistently held that neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary to make out a case of less favourable treatment.⁵⁸⁷ In our view, the implications of Measure 2 for competitive conditions are explicit from the text, design, and structure of the relevant provisions. In this respect, we recall the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found arises by necessary implication from the words actually used in the text" of the measure at issue.⁵⁸⁸ Accordingly, we do not consider that evidence showing that the measure may have had minimal or no market effects in recent years, even if accepted, would be sufficient to rebut India's prima facie case that the California Manufacturer Adder treats non-local products, including imported products, less favourably than like local products.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the California Manufacturer Adder modifies the conditions of competition to the detriment of imported distributed generation or AES technologies (under the 2016 SGIP Handbook) and certain generation and energy storage equipment (under the 2017 SGIP Handbook), and therefore accords less favourable treatment to such products within the meaning of Article III:4 of the GATT 1994.

India submits that the Montana tax incentive accords less favourable treatment to imported products than to like domestic products "by offering the tax incentives based on the in-state manufacture level of ethanol and, thereby, den[ies] the effective equality of opportunity to the imported products to compete in the domestic market of Montana".⁵⁸⁹ According to India, by giving ethanol distributors a "direct financial advantage in [the] form of the tax incentive for using the domestic product", Measure 4 "alter[s] the conditions of competition in the market in favour of the domestic products and final product derived from such use of domestic products".⁵⁹⁰

The United States responds that, insofar as India has failed to show that Measure 4 affects the sale, purchase, transportation, distribution or use of the relevant products, it has "consequently" failed to show that this measure modifies the conditions of competition to the detriment of imported products and thus accords less favourable treatment to such products.⁵⁹¹

As explained above⁵⁹², under Measure 4, a tax incentive is payable to ethanol distributors on "ethanol … produced in Montana from Montana agricultural products, including Montana wood or wood products".⁵⁹³ The Montana tax incentive does not make provision for a tax incentive on ethanol produced outside of Montana.

As India argues, and as we have found, Measure 4 offers a financial incentive to ethanol distributors when, and to the extent that, they distil ethanol from Montana-origin ingredients.⁵⁹⁴ Looking at the text, design, and structure of the Montana tax incentive, we observe that, ethanol distributors are entitled to 20 cents per gallon of ethanol 100% produced from Montana-origin ingredients, "with the amount of the tax incentive for each gallon reduced proportionately, based on the amount of agricultural or wood products not produced in Montana that is used in the production of the ethanol".⁵⁹⁵ Thus, the amount of the financial incentive is inextricably tied to the use of Montana-origin ingredients. The "fundamental thrust and effect"⁵⁹⁶ of Measure 4 is that higher incentives are provided the more local ingredients are used; conversely, the more non-local ingredients used by an ethanol distributor, the lower the financial incentive to which the distributor is entitled.

We do not, however, consider that India has shown that the Montana tax incentive also modifies the conditions of competition in favour of domestic ethanol, i.e. the "final product". We do not discount the possibility that an incentive on ingredients may flow through to the final product(s) in which such ingredients are used, particularly where such ingredients are required to be used in the production of a particular final product in order to benefit from the incentive. Such flow-through must, however, at least be argued by the complaining party as part of its burden to adduce arguments and to substantiate its assertions.⁵⁹⁷ India has not done so in the present case; rather, it has simply asserted⁵⁹⁸ that because the measure at issue provides a tax-incentive for the use of domestic ingredients, both the ingredients and the final product are placed in a better competitive position.⁵⁹⁹ In our view, such an assertion, without more detailed explanation of how the Montana tax incentive modifies the conditions of competition with respect to the final product, is not sufficient to establish the existence of less favourable treatment in regard to the final product.

On this basis, we consider that India has made a prima facie case that the Montana tax incentive modifies the conditions of competition in favour of Montana-origin ingredients by creating a financial incentive favouring their usage.⁶⁰⁰ We recall in this connection that past cases have consistently found that the provision of incentives or advantages for the use of domestic over imported products accord less favourable treatment to such imported products.⁶⁰¹ We do not, however, find that India has made a prima facie case that the measure also modifies the conditions of competition in favour of ethanol (i.e. the final product)made from such local ingredients.

As noted, the United States' primary response to India's claim is that, because India has failed to show that Measure 4 affects the sale, purchase, transportation or use of the relevant products, it follows that it has also failed to show that the measure accords treatment less favourable to imported than to domestic products.⁶⁰²

We have already found that, because it provides an advantage for the use of domestic products but not for the use of imported products, and thus impacts the conditions of competition between imported and domestic products, Measure 4 does affect the sale, purchase, transportation, distribution or use of the relevant products.⁶⁰³ Moreover, as explained above, in our view the question whether a measure accords treatment less favourable to imported products is related to, but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of products. It follows that the United States' argument in this regard is not capable of rebutting India's prima facie case that Measure 4 accords less favourable treatment to imported than to domestic products.

Finally, we recall the United States' argument, in the context of whether Measure 4 affects the sale, purchase, transportation, distribution or use of products, that the evidence on the record shows that no incentive has been paid under the measure since 1995.⁶⁰⁴ We have discussed this evidence above. In the context of the claim before us, and insofar as this argument might be relied upon to argue that the measure does not accord less favourable treatment, it suffices to recall that past cases have consistently held that neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary to make out a case of less favourable treatment.⁶⁰⁵ Here, the measure's implications for competitive conditions are explicit from the text, design, and structure of the relevant provisions. To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found arises by necessary implication from the words actually used in the text" of the measure at issue.⁶⁰⁶ Accordingly, we do not consider that evidence showing that Measure 4 may have had minimal or no market effects in recent years, even if accepted, would be sufficient to rebut India's prima facie case that the Montana tax incentive treats non-local products, including imported products, less favourably than like local products.

For the foregoing reasons, we find that India has shown prima facie, and the United States has not rebutted, that the Montana tax incentive modifies the conditions of competition to the detriment of imported ethanol ingredients. However, we do not consider that India has shown prima facie that the Montana tax incentive modifies the conditions of competition to the detriment of ethanol made from imported ingredients. Ultimately, though, having found that India has shown prima facie that the Montana tax incentive modifies the conditions of competition to the detriment of one of the two like imported products identified by India, we conclude that India has shown, and the United States has not rebutted, that the Montana tax incentive accords less favourable treatment to imported products, within the meaning of Article III:4 of the GATT 1994.

India submits that, under the Montana tax credit, "the tax credit is available only where … biodiesel has been manufactured from Montana produced feedstock".⁶⁰⁷ According to India, this "tax credit would play a decisive role in the choice that the consumer makes between domestic and imported products".⁶⁰⁸ In India's view, "insofar as the tax credit is contingent on the use of Montana produced feedstock it alters the conditions of competition of such feedstock".⁶⁰⁹ Specifically, India submits that "[t]he provision of the incentive would necessarily alter the competitive environment as any biodiesel producer would, in order to get the benefit of the refund, use feedstock produced in Montana to produce biodiesel".⁶¹⁰ Moreover, according to India, "[e]ven if the biodiesel producer is not eligible for such incentive, on account of the tax credit, any person who is eligible for the tax credit would prefer to buy biodiesel produced entirely from Montana produced feedstock".⁶¹¹ India concludes that "[t]his impl[es] that a greater demand is created, by way of the incentive offered, for both (a) Montana produced feedstock and (b) biodiesel produced from Montana produced feedstock".⁶¹²

The United States responds that, insofar as India has failed to show that Measure 5 affects the sale, purchase, transportation, distribution or use of products, it follows "by the same token" India has also failed to show that the measure modifies the conditions of competition to the detriment of imported products and thus accords less favourable treatment to such products.⁶¹³

As explained above⁶¹⁴, the Montana tax credit for biodiesel blending and storage provides for "special fuel distributors" and "owners or operators of a motor fuel outlet" to receive a "credit against [certain] taxes … for the costs of investments in depreciable property used for storing or blending biodiesel with petroleum diesel for sale".⁶¹⁵ This incentive is only available if the investment for which the credit is claimed is "used primarily to blend petroleum diesel with biodiesel made entirely from Montana-produced feedstocks".⁶¹⁶

As India has argued, and as we have found, the Montana tax credit for biodiesel blending and storage conditions the availability of a tax incentive on the use of local products. Looking at the text, design, and structure of the Montana tax credit, we note that tax-payers who blend petroleum diesel with biodiesel made entirely from Montana-produced feedstocks are entitled to the credit, whereas tax-payers who blend petroleum diesel with biodiesel made wholly or partly from feedstocks originating outside Montana are not so eligible. We agree with India that by offering a financial benefit for the use of local feedstock, the "fundamental thrust and effect"⁶¹⁷ of Measure 5 is to induce or incentivize blenders to use Montana-origin feedstock rather than feedstock from outside of Montana, including from other Members.

We also agree with India that Measure 5 modifies the conditions of competition in respect of biodiesel blended from Montana-origin feedstock. Looking again at the text, design, and structure of the measure, we note that it offers a tax incentive on property used not only to blend biodiesel, but also to store biodiesel blended from Montana-origin feedstock. This means that persons or enterprises who store biodiesel produced from Montana-origin feedstock receive the incentive, whereas those who store biodiesel made from feedstock produced outside Montana do not. In our view, this suggests that the "fundamental thrust and effect"⁶¹⁸ of Measure 5 is to create a commercial incentive to purchase and store biodiesel made from Montana-origin ingredients.

On this basis, we consider that India has shown prima facie that the Montana tax credit modifies the conditions of competition in favour of Montana-origin ingredients and biodiesel blended therefrom by creating a financial incentive favouring their usage.⁶¹⁹ We note in this connection that past cases have consistently found that the provision of incentives or advantages for the use of domestic over imported products accord less favourable treatment to such imported products.⁶²⁰

As noted, the United States' primary response to India's claim is that, because India has failed to show that Measure 5 affects the sale, purchase, transportation or use of the relevant products, it follows that it has also failed to show that the measure accords treatment less favourable to imported than to domestic products.⁶²¹

We have already found that, because it provides an advantage for the use of domestic products but not for the use of imported products, and thus impacts the conditions of competition between imported and domestic products, Measure 5 does affect the sale, purchase, transportation, distribution or use of the relevant products.⁶²² Moreover, as explained above, in our view the question whether a measure accords treatment less favourable to imported products is related to, but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of products. It follows that the United States' argument in this regard is not capable of rebutting India's prima facie case that Measure 5 accords less favourable treatment to imported than to domestic products.

Finally, we recall the United States' argument, in the context of whether Measure 5 affects the sale, purchase, transportation, distribution or use of products, that the evidence on the record shows that no incentive has been paid under Measure 5 since 1995.⁶²³ We have discussed this evidence above. In the context of the claim before us, and insofar as this argument might be relied upon to argue that the measure does not accord less favourable treatment, it suffices to recall that past cases have consistently held that neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary to make out a case of less favourable treatment.⁶²⁴ Here, the measure's implications for competitive conditions are explicit from text, design, and structure of the relevant legislation. To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found arises by necessary implication from the words actually used in the text" of the measure at issue.⁶²⁵ Accordingly, we do not consider that evidence showing that Measure 5 has may have had minimal or no market effects in recent years, even if accepted, would be sufficient to rebut India's prima facie case that the Montana tax credit treats non-local products, including imported products, less favourably than like local products.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Montana tax credit modifies the conditions of competition to the detriment of imported feedstock and biodiesel produced therefrom, and therefore accords less favourable treatment to such products within the meaning of Article III:4 of the GATT 1994.

India argues that because the Montana tax refund "is contingent upon the use of Montana produced ingredients it alters the conditions of competition for the said ingredients".⁶²⁶ According to India, "[t]he provision of the incentive would necessarily alter the conditions of competition environment as any biodiesel producer would, in order to get [the] benefit of the refund, use ingredients produced in Montana to produce biodiesel". India argues that this creates "a greater demand … by way of the incentive offered in the upstream market, for Montana produced ingredients".⁶²⁷ India further submits that Measure 6 "also alters the conditions of competition in the market in favour of biodiesel produced from ingredients produced in Montana domestic product [sic]". This is so, in India's view, because "[t]he availability of a tax refund for biodiesel manufactured from Montana products would imply that distributors/importers/retailers would prefer to use biodiesel produced using Montana produced ingredients". India concludes that Measure 6 therefore accords less favourable treatment to imported than to domestic products within the meaning of Article III:4 of the GATT 1994.⁶²⁸

The United States responds that, insofar as India has failed to show that Measure 6 affects the sale, purchase, transportation, distribution or use of the relevant products, it has "consequently" failed to show that Measure 6 modifies the conditions of competition to the detriment of imported products and thus accords less favourable treatment to such products.⁶²⁹

As explained above⁶³⁰, under the Montana tax refund, licensed distributors receive a refund equal to two cents per gallon on the sale of biodiesel produced entirely from biodiesel ingredients produced in Montana. Measure 6 also provides for owners and operators of retail motor fuel outlets to receive a tax refund equal to one cent per gallon on biodiesel purchased from a licensed distributor if the biodiesel is produced entirely from biodiesel ingredients produced in Montana.

We find convincing India's submission that the Montana tax refund accords less favourable treatment to non-local, including imported, products. Looking at the text, design, and structure of Measure 6, we note that it ties the provision of a tax refund to the use of local products. The refund is payable only for transactions involving the sale or purchase of biodiesel produced entirely from Montana-origin ingredients. By offering a financial benefit to licensed distributors who sell biodiesel made entirely from Montana-origin ingredients, the "fundamental thrust and effect"⁶³¹ of Measure 6 is to stimulate increased demand for the Montana-origin ingredients that must be used for the biodiesel to be eligible for the refund. Conversely, Measure 6 reduces demand for non-Montana-origin ingredients, use of which renders biodiesel ineligible for the tax refund.

Additionally, the Montana tax refund incentivizes motor fuel retailers to purchase biodiesel made from local ingredients by offering them a refund of one cent per gallon on biodiesel made from Montana-origin ingredients, which refund is not available on purchases of biodiesel made wholly or partly from non-Montana-origin ingredients. The Montana tax refund thereby strengthens the competitive position of such biodiesel over other biodiesels made wholly or partly from non-Montana-origin ingredients.

We therefore consider that India has made a prima facie case that the Montana tax refund accords treatment less favourable to imported products than to local products.⁶³² We note that this finding is consistent with the numerous past cases that have found that the provision of incentives or advantages for the use of domestic over imported products accord less favourable treatment to such imported products.⁶³³

As noted, the United States' primary response to India's claim is that, because India has failed to show that Measure 6 affects the sale, purchase, transportation or use of the relevant products, it follows that it has also failed to show that the measure accords treatment less favourable to imported than to domestic products.⁶³⁴

We have already found that, because it provides an advantage for the use of domestic products but not for the use of imported products, and thus impacts the conditions of competition between imported and domestic products, Measure 6 does affect the sale, purchase, transportation, distribution or use of the relevant products.⁶³⁵ Moreover, as explained above, in our view the question whether a measure accords treatment less favourable to imported products is related to, but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of products. It follows that the United States' argument in this regard is not capable of rebutting India's prima facie case that Measure 6 accords less favourable treatment to imported than to domestic products.

Finally, we recall the United States' argument, in the context of whether Measure 6 affects the sale, purchase, transportation, distribution or use of products, that the evidence on the record shows that no incentive has been paid under the measure at issue since 2011.⁶³⁶ We have discussed this evidence above. In the context of the claim before us, and insofar as this argument might be relied upon to argue that the measure does not accord less favourable treatment, it suffices to recall that past cases have consistently held that neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary to make out a case of less favourable treatment.⁶³⁷ Here, the measure's implications for competitive conditions are explicit from the text, design, and structure of the relevant legislation. To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found arises by necessary implication from the words actually used in the text" of the measure at issue.⁶³⁸ Accordingly, we do not consider that evidence showing that Measure 6 may have had minimal or no market effects in recent years, even if accepted, would be sufficient to rebut India's prima facie case that the Montana tax refund treats non-local products, including imported products, less favourably than like local products.

We therefore find that India has shown prima facie, and the United States has not rebutted, that the Montana tax refund modifies the conditions of competition to the detriment of imported ingredients and biodiesel produced therefrom, and therefore accords less favourable treatment to such products within the meaning of Article III:4 of the GATT 1994.

Regarding the Connecticut additional incentive, India submits that, because of the high costs associated with the installation of solar photovoltaic (PV) modules and solar thermal systems, "any form of incentive would play a decisive role in the choice that the consumer makes between domestic and imported products". Thus, according to India, "[t]he provision of additional incentives necessarily alters the competitive environment as any consumer would want to reduce its costs by installing the products that are eligible for the additional incentives".⁶³⁹ India concludes that because Measure 7 "provid[es] additional incentives for the use of Connecticut-origin product[s], it alters the conditions of competition in the market in favour of the domestic product", and "[t]his alteration … is to the detriment of … imported 'like products'".⁶⁴⁰

The United States responds that, insofar as India has failed to show that Measure 7 affects the sale, purchase, transportation, distribution or use of the relevant products, it follows "by definition" that it has also failed to show that Measure 7 modifies the conditions of competition to the detriment of imported products and thus accords less favourable treatment to such products.⁶⁴¹ The United States adds that India, in the context of the alleged additional incentive, has argued that "any incentive would play a decisive role in" consumer choice, whereas what India needed to show was that the "particular CRSIP [Connecticut Residential Solar Investment Program] measures" have done so. According to the United States, India's failure to refer to the specific challenged measure in its arguments means that India has not provided "a particularized analysis of [Measure 7's] expected operation before summarily inferring that [it] play[s] a decisive role in incentivizing purchase or use of products made in the state of Connecticut".⁶⁴²

In response to the United States' argument concerning India's reference to "any incentive", India, in response to a question from the Panel, submitted that:

The reference to the phrase "any form of incentive" needs to be read in the context which has it has been used. The context, of course, is the additional incentives offered under the challenged measures. In fact, in the very next sentence, India refers to the additional incentives under the challenged measures at issue. The claim that India has not offered particularised analysis of the CRSIP measures, therefore, is baseless.⁶⁴³

As explained above⁶⁴⁴, the Connecticut additional incentive is a part of the CRSIP, which provides financial incentives to homeowners who install solar PV or solar thermal systems on their properties.⁶⁴⁵ Specifically, the Connecticut additional incentive provides that an additional incentive of up to 5% of the ordinarily available incentive may be made available for the use of "major system components manufactured or assembled in Connecticut"⁶⁴⁶, and another additional incentive of up to 5% of the ordinarily available incentive may be made available "for the use of major system components manufactured or assembled in a distressed municipality … or a targeted investment community".⁶⁴⁷ Nothing in the relevant legislation either requires the installation of systems whose "major system components" are locally manufactured or prevents the installation of systems whose "major system components" are not locally manufactured. Homeowners who install such systems are eligible to receive the base incentives provided for in the CRSIP. However, such homeowners are not eligible to receive the additional incentive, which may be up to 5% of the CRSIP base incentive payable to all homeowners who install solar PV or solar thermal systems.⁶⁴⁸

We are convinced by India's submission that the Connecticut additional incentive accords less favourable treatment to non-local products, including imported products. Looking at its text, design, and structure, we observe that Measure 7 establishes a system under which homeowners who choose to install solar PV or solar thermal systems made from locally produced components receive a larger refund than those who decide to install systems made from non-local major system components. We agree with India that, by providing a larger refund for the installation of systems made with locally produced components, the "fundamental thrust and effect"⁶⁴⁹ of Measure 7 is to stimulate demand for systems made from locally produced components, as opposed to systems made with components produced elsewhere. This in turn strengthens the competitive position of such components over components produced outside of Connecticut.

In our view, therefore, India has established prima facie that the Connecticut additional incentive modifies the conditions of competition to the detriment of such imported components.⁶⁵⁰ We note in this connection that this finding is consistent with the many past cases that have held that the provision of incentives or advantages for the use of domestic over imported products accord less favourable treatment to such imported products.⁶⁵¹

We do not agree with the United States' argument that India has failed to provide a sufficiently particularized analysis of Measure 7. Contrary to the United States' suggestion, India's first written submission is not concerned with incentives in the abstract. Rather, paragraphs 679 and 680 of India's first written submission clearly explain why, in India's view, the Connecticut additional incentive modifies the conditions of competition to the detriment of non-local products, including imported products. Paragraph 679 begins by noting the high cost of installing solar PV and solar thermal systems. It then states that, in light of such costs, any incentive that lowered such cost would play a key role in a consumer's decision whether and which system to install. Finally, it focuses on Measure 7, arguing that, because the provision of a financial incentive that lowers the costs of certain solar PV or solar thermal systems would create an incentive in favour of those systems, it follows that the Connecticut additional incentive, which provides a bigger refund to homeowners who install systems made from local components than to those who install systems made from non‑local components, creates a greater incentive in favour of such systems, thereby modifying the conditions of competition in their favour.⁶⁵² In other words, India explains that, in the costly field of solar PV and solar thermal systems, cheaper systems will be more competitive; by providing additional refunds for the purchase of systems made with local components, the Connecticut additional incentive modifies the conditions of competition in favour of such systems.

In our view, the case as set out by India in paragraphs 679 and 680 of its first written submission is therefore sufficiently detailed and particularized to raise a prima facie case that the Connecticut additional incentive accords less favourable treatment to imported products.

This brings us to the United States' other argument, which is that, because India has not shown that the measure affects the sale, purchase, transportation, distribution or use of products, it consequentially cannot accord products less favourable treatment.

We have already found that, because it provides an advantage for the use of domestic products but not for the use of imported products, and thus impacts the conditions of competition between imported and domestic products, Measure 7 does affect the sale, purchase, transportation, distribution or use of the relevant products.⁶⁵³ Moreover, as explained above, in our view the question whether a measure accords treatment less favourable to imported products is related to, but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of products. It follows that the United States' argument in this regard is not capable of rebutting India's prima facie case that Measure 7 accords less favourable treatment to imported than to domestic products.

Finally, we recall the United States' argument, in the context of whether Measure 7 affects the sale, purchase, transportation, distribution or use of products, that data submitted by India do not establish that any additional incentive payments have been made. Insofar as this argument might be relied upon to argue that the measure does not accord less favourable treatment, we note that past cases have consistently held that neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary to make out a case of less favourable treatment.⁶⁵⁴ Here, the implications of Measure 7 for competitive conditions are explicit from the text, design, and structure of the relevant legislation. To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found arises by necessary implication from the words actually used in the text" of Measure 7.⁶⁵⁵ Accordingly, we do not consider that evidence showing that Measure 7 may have had minimal or no market effects in recent years, even if accepted, would be sufficient to rebut India's prima facie case that the Connecticut additional incentive treats non-local products, including imported products, less favourably than like local products.

We therefore find that India has shown prima facie, and the United States has not rebutted,that the Connecticut additional incentive modifies the conditions of competition to the detriment of imported major system components of solar PV and solar thermal systems, and the systems made with such components, and therefore accords less favourable treatment to such products within the meaning of Article III:4 of the GATT 1994.

India submits that, under the Michigan Equipment and Michigan Labour Multipliers, "only those renewable energy systems that meet the statutorily prescribed level of in-state manufacturing are eligible for the additional incentives".⁶⁵⁶ In India's view, this means that "the relevant imported products do not get the equality of opportunity to compete on the domestic market of Michigan".⁶⁵⁷ According to India, "[s]ince [] the buyers are induced to purchase renewable energy system[s] of Michigan origin, the 'like' imported products, which are negated the equality of competition, become undesirable in the eyes of a potential buyer".⁶⁵⁸ India concludes that such imported products are therefore accorded less favourable treatment.

The United States responds that, insofar as India has failed to show that Measure 8 affects the sale, purchase, transportation, distribution or use of the relevant products, it has "consequently" also failed to show that the measure modifies the conditions of competition to the detriment of imported products and thus accords less favourable treatment to such products.⁶⁵⁹ Moreover, the United States submits that India has failed to "provide any analysis as to why [Measure 8] would result in buyers being 'induced to purchase' equipment made in Michigan or cause imported products to become 'undesirable'". In the United States' view, "India simply assumes in passing … that [Measure 8] will incentivize the purchase of locally manufactured equipment on the Michigan market".⁶⁶⁰

In response to the United States' argument that it has failed to explain how Measure 8 would modify the conditions of competition to the detriment of imported products, India submitted that, in its first written submission, it "explained the discriminatory element of the challenged measure[,] i.e. incentives that are offered once the in-state level of manufacturing criterion is met". In India's view, "[t]his … denies the equality of opportunity to the like imported products and that is sufficient for proving less favourable treatment".⁶⁶¹

As explained above⁶⁶², the Michigan Equipment and Michigan Labour Multipliers are part of a broader set of rules and regulations called "Renewable Energy Standards Program in the State of Michigan" (RESPM). Inter alia, the RESPM requires electricity providers to maintain a portfolio of renewable energy credits (RECs) that can be collected either by generating or purchasing renewable energy.⁶⁶³ The Multipliers at issue provide that electricity providers are eligible to receive an extra 1/10 REC (over and above the RECs ordinarily allotted for generation or purchase of renewable electricity) for every megawatt hour of electricity generated (i) from a renewable energy system constructed using equipment made in Michigan⁶⁶⁴, or (ii) from a renewable energy system constructed using a workforce composed of residents of Michigan.⁶⁶⁵

In our view, India has convincingly shown that both the Michigan Equipment and Michigan Labour Multipliers accord less favourable treatment to imported products. Looking at the text, design, and structure of the Multipliers, we note that both programs give electricity providers who generate electricity using systems made from local equipment or by local workforce, or who purchase electricity so generated, an extra 1/10 REC per kilowatt hour of electricity. This means that providers who generate or purchase such electricity will more easily be able to satisfy the regulatory requirements concerning the collection of RECs. In the context of a regulatory system requiring electricity providers to obtain a certain number of credits per year, the possibility of obtaining extra credits without having to produce or purchase additional energy is a clear incentive favouring the use of renewable energy systems containing local inputs or constructed using local workforce. Accordingly, the "fundamental thrust and effect"⁶⁶⁶ of the Multipliers is to promote the purchase of renewable energy systems made with local components or constructed using local labour.

We thus consider that India has shown prima facie that the Multipliers under Measure 8 incentivize the purchase of renewable energy systems made with local components or constructed using local labour, and therefore modify the conditions of competition in their favour, and to the detriment of like imported products.⁶⁶⁷

In this connection, we do not agree with the United States that India's arguments concerning the Michigan Equipment and Michigan Labour Multipliers lack analysis or are based on presumptions. Paragraphs 735-749 of India's first written submission contain a detailed explanation of the Multipliers, explaining both their regulatory context and expected and historical operation. India supports its description of the Multipliers by explaining how they have influenced the sourcing decisions of one particular Michigan electricity provider.⁶⁶⁸ India then proceeds to elaborate its legal arguments, including those cited earlier in this section.⁶⁶⁹ Those legal arguments draw on, and are supported by, the factual argumentation contained in paragraphs 735-749. Reading these two sections of India's submission together, we consider that India has sufficiently explained both the factual and legal bases of its claim against these Multipliers. Specifically, we consider that India has explained why the Multipliers "would result in purchasers being 'induced to purchase' renewable energy systems containing local components or constructed using local workforce"⁶⁷⁰ – as noted in the previous paragraph, this is because the availability of extra RECs is a clear incentive in the context of a regulatory system requiring that electricity providers obtain a certain number of RECs per year. In our view, this analysis emerges clearly from India's submission when all the relevant parts of that document are read as a whole, and not in an unduly isolated or fragmented manner, as, for example, by reading one subsection without reference to other related subsections.

We now turn to the United States' other argument, namely that, because India has not shown that Measure 8 affects the sale, purchase, transportation, distribution or use of the relevant products, it consequentially cannot accord imported products less favourable treatment.⁶⁷¹

We have already found that, because it provides an advantage for the use of domestic products but not for the use of imported products, and thus impacts the conditions of competition between imported and domestic products, Measure 8 does affect the sale, purchase, transportation, distribution or use of the relevant products.⁶⁷² Moreover, as explained above, in our view the question whether a measure accords treatment less favourable to imported products is related to, but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of products. It follows that the United States' argument in this regard is not capable of rebutting India's prima facie case that Measure 8 accords less favourable treatment to imported than to domestic products.

Finally, we recall the United States' argument, in the context of whether Measure 8 affects the sale, purchase, transportation, distribution or use of products, that evidence on the record shows that only a miniscule number of credits generated under the RESPM have been issued pursuant to the Michigan Equipment Multiplier. We discussed the evidence above.⁶⁷³ In the context of the claim before us, and insofar as this argument might be relied upon to argue that the measure does not accord less favourable treatment, it suffices to recall that past cases have consistently held that neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary to make out a case of less favourable treatment.⁶⁷⁴ Here, the implications of Measure 8 for competitive conditions are explicit from the text, design, and structure of the relevant legislation. To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found arises by necessary implication from the words actually used in the text" of the measure at issue.⁶⁷⁵ Accordingly, we do not consider that evidence showing that Measure 8 may have had minimal or no market effects in recent years is sufficient to rebut India's prima facie case that Michigan Equipment and the Michigan Labour Multipliers treat non-local products, including imported products, less favourably than like local products.