The Panel Report in India-Export-Related Measures (DS541) is a good example of WTO dispute settlement doing what it should, which is delivering the outcomes agreed by the Members, as reflected in the text of the WTO Agreement.
When the Subsidies Agreement refers to eight years "from the entry into force of the WTO Agreement", the Panel understands this to mean 2003, not some later date. And when the Subsidies Agreement says that inputs consumed in the production process are "inputs physically incorporated", the Panel excludes capital goods. The Report demonstrates a proper focus on the agreed text as reflective of the Members' intent.
This is a big win for the United States. It tells us that transitional S&D is just that, time-limited, and not a permanent carve-out. And it makes clear that a Member may not justify export-contingent grants by pretending they are duty and/or tax remissions.
Unfortunately for the United States, India has appealed the decision, and the appeal will certainly not be decided by 31 December of this year. Thus, with the Appellate Body potentially ceasing to function as of the end of the year, and unless all existing Appellate Body Members remain in place under Rule 15 to decide pending disputes, the Report may never be adopted. And even if an appeal is finally heard, with three functional AB Members, the process will presumably take years.
