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and Trade and natural resources, to the extent that they may be traded, are covered by the obligations contained in the World Trade Organization (WTO) agreements such as the General Agreement on Tariffs and Trade (GATT) (WTO 2010). These obligations include the most favoured nation principle (i.e. obligation not to discriminate between “like products” imported from different WTO Members) and the national treatment principle (i.e. obligation not to discriminate between domestic and imported “like products.”) The WTO disciplines on subsidies are also very important as the energy sector is heavily subsidised. Indeed, imbalances in the availability of appropriate services and technologies, along with market protections such as subsidies and tariffs, distort international trade in this sector (Jha 2011). In the context of renewable energy, support schemes, which may include local content requirements, have led to disputes at the WTO, as illustrated in Box 3. Box 3. Renewable energy support programmes and the WTO Renewable energy support programmes and, in particular, associated local content requirements can be of contentious nature vis à vis international trade rules. Indeed, the dispute settlement system of the WTO has recently been addressed by various requests for consultation concerning national renewable energy support programmes and connected local content requirements. Renewable energy support programmes can take various forms, such as for instance feed-in tariff schemes, while local content requirements generally appear as pre-conditions for accessing support programmes, creating incentives to source renewable energy equipment from the domestic market. In February 2013, for example, the United States requested consultations with India concerning certain measures relating to domestic content requirements and prohibited subsidies under the Indian Jawaharial Nehru National Solar Mission for solar cells and solar modules. The request for consultations contained allegations of breaches of various WTO provisions, including the Agreement on Subsidies and Countervailing Measures (SCM Agreement) as well as national treatment obligations under the General Agreement on Tariffs and Trade (GATT) and the Agreement on Trade Related Investment Measures (TRIMs Agreement). In late 2012, a WTO panel found a Canadian feed-in tariff scheme, set-up to incentivise national renewable energy production, to be consistent with the SCM Agreement, as the measures at issue did not constitute a “subsidy” within the meaning of that agreement. At the same time, however, the local content requirements included in the Canadian programme were found to be inconsistent with the national treatment obligations included in the GATT and the TRIMs Agreement. The subsequent appeal decision, circulated on 6 May 2013, did not reverse the panel’s findings on these issues. The controversial nature of renewable energy subsidy programmes and related local content requirements is also witnessed by further proceedings on-going at the WTO, including a request for consultations filed by China against the EU in relation to the feed-in tariff schemes of certain EU Member States, and a request for consultations filed by the United States against certain Chinese support programmes in the wind power sector. Source: World Trade Organization (WTO), Website 224 Besides posing regulatory issues, trade in the energy sector also presents specific operational challenges. In particular, energy trade is often linked to fixed infrastructure (e.g. transportation pipelines and transmission grids) that is needed to transport oil, gas, and electricity. This necessitates high upfront investments in capital-intensive infrastructure projects and conditions of access to energy transportation networks. In addition, uneven geographical distribution of resources means that some countries are dominated by resource production, while others have none; more than 90 per cent of proven oil reserves are in just 15 countries (WTO 2012). Furthermore, national energy sectors are often dominated by government-owned or government-controlled companies that perform regulatory functions (Selivanova 2007). Another distinguishing factor for trade in the energy sector is that energy itself and materials to produce energy products do not usually encounter market access problems in their export markets (Selivanova 2007). Trade restrictions in the energy sector tend to be directed more to export barriers and export taxes. Nevertheless, in the renewable energy field, both market access issues and export restrictions have been subject to international consultations. Several market access cases in the WTO have concerned solarPDF Image | Renewable Energy
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