I've got a hypothetical related to the export contingency standard, and I'm curious to hear what people think of it. Let's say you have a subsidy measure under which the subsidy is available to producers on the following basis. You get the subsidy if you satisfy either Condition 1 or Condition 2, each of which has multiple, required elements:
Condition 1:
-- the product is exported
-- the product is made with domestically produced energy
Condition 2:
-- the product is made using a designated minimum percentage of clean energy
-- the product is made using a minimum percentage of recycled inputs
To reiterate, you can get the subsidy if you satisfy both elements of Condition 1 or if you satisfy both elements of Condition 2. But you need only satisfy Condition 1 or Condition 2; no need to satisfy both.
Just to make clear what I'm going for here, export is not a necessary condition (you can get the subsidy without exporting, by satisfying Condition 2) and it is not a sufficient condition (exporting alone will not get you the subsidy under Condition 1, as you still need to satisfy the other element of Condition 1).
So here's my question: Does this measure satisfy the SCM Agreement Article 3.1(a) export contingency standard? Why or why not? I would guess that most people will say it does, but I'm curious to hear the rationale.
For easy reference, Article 3.1(a) states in relevant part:
3.1 ... the following subsidies, within the meaning of Article 1, shall be prohibited:
(a) subsidies contingent, in law or in fact [fn. 4], whether solely or as one of several other conditions, upon export performance, ...
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[Fn. 4] This standard is met when the facts demonstrate that the granting of a subsidy, without having been made legally contingent upon export performance, is in fact tied to actual or anticipated exportation or export earnings. The mere fact that a subsidy is granted to enterprises which export shall not for that reason alone be considered to be an export subsidy within the meaning of this provision.
I assume the main reason people would put forward for why export contingency exists here will relate to either "several other conditions" or "tied to," but I'm eager to hear the details.
