'The wide and the narrow gate' : benchmarking in the SCM agreement after the Canada : renewable energy/FIT ruling

Abstract

This paper is about the future of benchmarking in the SCM Agreement after the Canada – Renewable Energy/FIT dispute. This case left us with bad law. The author claims that WTO dispute settlement organs are now faced with two options. After outlining the risks that a normalization-and-expansion of this ruling may pose, the paper speculates on how the much-preferable clarification-and-narrowing of the law could be done. In so doing, it draws on the significant EU experience in State aid law with respect to the use and relevance of ‘price-discovery mechanisms’, which is one of the intriguing undercurrents of the dispute. This exercise, however, exposes many challenges and difficulties, many of them already occurred in EU law. The conclusion is thus that the amount of helpful clarification the WTO judicature could offer is limited. This leads to suggest, once again, that the only solution is law reform.