How Canada – Renewable Energy Supports the Use of the Alternative ‘Commercial Reasonableness’ Standard in Future Feed-In Tariff Disputes - Global Trade and Customs Journal View How Canada – Renewable Energy Supports the Use of the Alternative ‘Commercial Reasonableness’ Standard in Future Feed-In Tariff Disputes by - Global Trade and Customs Journal How Canada – Renewable Energy Supports the Use of the Alternative ‘Commercial Reasonableness’ Standard in Future Feed-In Tariff Disputes 9 3

In the Canada - Certain Measures Affecting the Renewable Energy Generation Sector and Canada - Measures Relating to the Feed- In Tariff Program disputes,1 Japan and the EU claimed that Canada was subsidizing certain renewable energy generators in Ontario through the use of a feed-in tariff programme. In those disputes the panel and the Appellate Body rejected the proposed market benchmarks during their 'benefit' analyses under Article 1.1(b) of the WTO Agreement on Subsidies and Countervailing Measures. Then, insufficient evidence prevented the dispute settlement organs from completing the analyses using their own ad hoc market benchmarks. Future disputes are at risk of similar unsatisfactory outcomes, especially when distorted markets are present. This article suggests the use of an alternative 'benefit' analysis using the 'commercial reasonableness' standard from EC - DRAMs and Japan - DRAMs when proposed market benchmarks are rejected.

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