What does the recent WTO litigation on renewable energy subsidies tell us about methodology in legal analysis? : the good, the bad, and the ugly

Abstract

Through the use of the recent litigation on renewable energy subsidies in the World Trade Organization (‘WTO’) as case-study, this paper highlights the importance of methodology in legal analysis and, in particular, of integrity, coherence and legitimacy. Reference is made to those cases where, in presence of pressing policy considerations, the adjudicator is led to commit serious errors in order to reach what is perceived as a just and desirable outcome. It is sometimes the case that adjudicators are called to distinguish a ‘good’ policy from a ‘bad’ one, and, if the regulatory framework is not sufficiently responsive to such distinctions, the act of accommodation of law and policy may lead to ‘ugly’ constructions of the law. The twist of this course of conduct is that the effects of legal interpretation tweaking might not be easily confined to the case at hand and may have broader, negative implications for the legal system at large. Rather than resolving into a simple criticism of adjudicating bodies, the paper argues that the ultimate responsibility for dispute settlement mistakes caused by policy pressures is that of law-makers and their inability to take the lead and reform the law.