From the EC - Aircraft panel report:
7.648 Correctly interpreted, the legal standard set out in footnote 4 indicates that a subsidy may be found to be contingent in fact upon anticipated export performance, and therefore prohibited under Article 3.1(a), when there is evidence demonstrating the existence of three distinct elements: (i) the granting of a subsidy; (ii) that is tied to; (iii) anticipated exportation or export earnings. At the heart of this legal standard is the second element, which reflects the notion of contingency set out in Article 3.1(a).3077 The meaning of "contingent" in Article 3.1(a) is "conditional" or "dependent for its existence upon".3078 Thus, in order to qualify as a prohibited export subsidy, the grant of the subsidy must be conditional or dependent upon actual or anticipated export performance; or as we have put it above, a subsidy must be granted because of actual or anticipated export performance. ...
I found the "because of" language interesting. "Because of" sounds to me like the reason for, which seems to get at the intent of the government. Does the panel have intent in mind here? Later, the Panel said:
7.675 In our view, a government's motivation for granting a particular subsidy, to the extent it can be established from the evidence and arguments presented by the parties in dispute, will be highly relevant when evaluating whether a subsidy has been granted contingent in fact upon export performance within the meaning of Article 3.1(a) of the SCM Agreement. ...
So it seems that the Panel does see intent as part of the export contingency standard. But what role does it play exactly? Is it a required element? How should it be assessed?
And perhaps most importantly, what will the Appellate Body think of looking at intent in this context?
