I think we are all still puzzling over what to make of the Appellate Body's reasoning in the Canada - Renewable Energy/FIT case. Luca Rubini has some thoughts in a new paper. Here's an excerpt:
the fact that the market is even fundamentally distorted, to the extent that the public hand artificially creates it, does not represent an obstacle to – but rather evidence for – the determination of the existence of a benefit. It is still the market standard that is at work, albeit in an extreme setting. From another perspective, the fact that a ‘competitive market’ producing the desired outcome does not exist (or even that it could not possibly exist), and that it is only because of government intervention that the desired ‘public goods’ are supplied, is in itself evidence of a subsidy scenario. With the risk of appearing paradoxical, and despite the obvious intricacies of Ontario’s FIT Programme and the relevant energy market, this case is a textbook example of the existence of a benefit and hence a subsidy
Luca is questioning the Appellate Body's approach, and I have my doubts as well. But putting that aside, another question is, now what? Given that this jurisprudence exists, where do we go from here?
