In the recent panel reports relating to “ CANADA – CERTAIN MEASURES AFFECTING THE RENEWABLE ENERGY GENERATION SECTOR” and “CANADA – MEASURES RELATING TO THE FEED-IN TARIFF PROGRAM” , the complainants ( namely, the EU and Japan) have asked the Panel not to limit its analysis to rejecting the benchmarks proposed by the parties, and invited the Panel to "find the appropriate benchmark to make a finding on the existence or absence of benefit" and "identify the proper benchmark to complete the benefit analysis" . Indeed, according to the European Union, the Panel was under an obligation to do so and the EU referred for this purpose to Appellate Body Report, Japan – DRAMs, para. 174; and Panel Report, Canada - Aircraft, para. 9.312.
On this crucial point, one would have legitimately expected a reasoned explanation by the panel explaining why the previous passages were not relevant. Unfortunately, the only thing we obtain from the panel is the following tirade, without any legal analysis to justify its position:
We are not convinced that the passages the European Union has referred to from the Appellate Body report in Japan – DRAMS and the panel report in Canada – Aircraft , stand for the proposition that the Panel majority in these disputes cannot limit its analysis to rejecting the complainants' benefit arguments.
In my view, this is an unacceptable attitude. A panel must offer a reasoned legal explanation on such an important point, clarifying why the passages invoked by the EU are not relevant. Claiming simply no to be convinced by an argument is certainly not an acceptable alternative to a reasoned legal explantion of why the panel is not convinced. Unfortunately, since the EU and Japan would probably not appeal the panel ruling, we will never know why the panel was not convinced by the passages invoked by the EU.
