Recall the dissent on the issue of "benefit" in the Canada - Renewable Energy panel report, mentioned here. It's a fascinating and complex issue, related to whether there is a market in the electricity industry that can be used as a benchmark.
In Japan's cross-appeal in the case, it has appealed the Panel majority's findings on this issue, as follows:
d. The Panel erred in its interpretation and application of Article 1.1(b) of the SCM Agreement, and failed to make an objective assessment of the matter as required by Article 11 of the DSU, when it found that it cannot resolve whether the challenged measures confer a benefit by applying a benchmark derived from the conditions for purchasing electricity in a competitive wholesale electricity market, particularly in disregarding Japan's argument that the challenged measures confer a benefit because the objective design, structure and operation of the FIT Program demonstrates that solar PV and wind generators would not be present in Ontario's wholesale electricity market absent the FIT Program. Japan requests the Appellate Body to reverse these findings by the Panel and instead to find that the challenged measures confer a "benefit".
e. The Panel failed to make an objective assessment of the matter, including an objective assessment of the facts of the case, as required by Article 11 of the DSU, in failing to resolve the question of benefit under Article 1.1(b) of the SCM Agreement based on its preferred comparison between the relevant rates of return of the challenged FIT and microFIT Contracts with the relevant average cost of capital in Canada. Japan requests the Appellate Body to complete the analysis, and find that the FIT Program and Contracts confer a benefit under the Panel's preferred approach. However, this appeal is conditional on the Appellate Body rejecting Japan's argument that the challenged measures confer a benefit pursuant to item 1.d above.
It's not the simplest issue to follow. It takes reading the majority's and dissent's reasoning (or our summary) several times to get a sense of it. But the Appellate Body's findings could have some important systemic implications, so it's worth a look if you're into these issues.
