Your money and your planet : trade and solar goods post-Paris Agreement

Abstract

WTO Dispute 456, brought by the United States against India for use of domestic content requirements in a percentage of an ambitious national solar programme was considered over the latter half of 2015, and a Final Panel Report, having initially been promised for release in September 2015, was not issued until 26 February 2016. During this time, much of the world was focused heavily on the run up to, the surge in global political will to achieve, and the actual conclusion of, the historic Paris Agreement at the COP21 on 12 December 2015. While it might have been hoped that the WTO panel in India – Solar Cells had postponed release of its report to consider the global shift in attention to the urgent environmental concerns brought on by rising earth temperatures and the resultant effects of climate change, that was not the case. The Panel squarely ignored any and all references to the environment or sustainable development India presented in defence of the US claims for incompatibility with the GATT, and decided that India was required to modify its laws. India appealed. Again, it was hoped, given the continued global momentum involved in the mass signing of the Paris Agreement on Earth Day, 22 April 2016, and the commencement of ratifications and signatures deposited, that the Appellate Body would find an environmental justification to allow the limited domestic content requirements. This was not the case. This paper discusses that dispute, the approaches of India, the US and the EU to it, as well as toward their own uses of domestic content requirements particularly with respect to development of solar/RES electricity, reviews impediments to reaching a better footing for environmental concerns at the WTO, and proposes some fast and some slower legal solutions for achieving such a shift in priorities.