Mr. M.S. Srikar, author of the “Tread the Middle Path” trade law blog, has just published a book on the subject of the relation between WTO law and renewable energy support schemes.
It is available here as a free PDF file.
I am pleased that my blog made it into one of the footnotes. And I am also pleased to note that the book takes the view that feed-in tariffs are subsidies under WTO law. That’s because I am of the opposing view on that point, which makes it possible to discuss the issue.
Srikar’s theory relies on one point I would call into question. In his opinion, delivering electricity services is a function normally performed by government.
That’s just not true. Look at all the industrialized countries and show me one where the government provides electricity.
It is true that some less developed countries may have not privatized this function. But that does not make it one “normally” provided by government.
And it is true that this will lead to a different treatment of the issue, depending on which way electricity is organized somewhere. But that’s just the normal consequence of that different structure, which each country is basically free to choose.
In contrast, I agree completely that local content requirements for generating equipment are a clear case of violating the national treatment requirement under Article 3 of GATT.
And I also agree with the analysis that restricting the feed-in tariff to electricity generated nationally is at least very dubious under exactly the same standard, though just about everybody seems to do it that way.
I think that is an important point when discussing international trade in electricity. If you discuss a Regional Comprehensive Economic Partnership Agreement for Asia, as will happen next year, it might be of interest to include language that requires everyone to extend their feed-in tariff programs to imported electricity.
I think doing that would be very helpful when building the Asia Super Grid. In the absence of getting that done, one might consider to call for Japan paying a feed-in tariff specifically for energy generated in the Mongolian Gobi desert. I recall having done that recently.
Of course, people could object that this would be violating the most-favored nation rule of the WTO, so one would need to ask if it may be justified under the Enabling Clause.
Update: Srikar kindly replies here.