GIMC: Semifinalists: Applicants

TEAM CODE: 134
BEFORE THE PANEL ESTABLISHED BY WTO/DSB

____________________________________________________________________________________________________
____________________________________________________________________________________________________
WINGARDIUM
MEASURES CONCERNING
DOMESTIC SOURCING OF SOLAR CELLS &
PLAIN PACKAGING OF CRYSTALLINE SILICON CELLS
______________________________________________________________________________________________________________________________
COMPLAINANT: LEVIOSA
WT/DSXXX
____________________________________________________________________________________________________
____________________________________________________________________________________________________
WRITTEN SUBMISSION ON BEHALF OF THE COMPLAINANT

____________________________________________________________________________________________________
____________________________________________________________________________________________________
8TH GNLU INTERNATIONAL MOOT COURT COMPETITION

2016
1
TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................................. 4

INDEX OF AUTHORITIES ................................................................................................................... 7
STATEMENT OF FACTS ................................................................................................................... 11
MEASURES AT ISSUE ...................................................................................................................... 13
SUMMARY OF PLEADINGS .............................................................................................................. 14
LEGAL PLEADINGS ......................................................................................................................... 17
I. WG/SM/P-1 violates art. III of the GATT and Art. 2.2 of TRIMS. ...................................... 17
[A]. It violates Art.III:4 ......................................................................................................... 17
[B]. It violates Art. III: 5. ...................................................................................................... 19
[C]. It is not government procurement within the meaning of Art. III:8(a) .......................... 21
II. The Wingardian measure implements and requires marks of origin. .................................. 23
[A]. The marking requirement materially reduces its value ................................................. 23
[B]. Unreasonably increases cost. ......................................................................................... 24
III. The impugned measures do not fall within any of the exceptions under Art. XX of the GATT
................................................................................................................................................... 24
[A]. The Wingardian labelling requirements are not exempted under Art. XX(b). .............. 24
(i) It does not contribute to the achievement of the policy objective .................................... 25
(ii) Not based on scientific data collection and risk assessment. ......................................... 25
(iii) There exist reasonably available alternatives ............................................................... 26
IV. Directive 141/PP/CST violates Art. 2.2, TBT. ................................................................... 27
[A]. It is a technical regulation. ............................................................................................ 27

[B]. It is prohibited under Art.2.2, TBT. ............................................................................... 28
V. The FIT Scheme violates the SCM Agreement ................................................................... 30
[A]. The FIT Scheme is a subsidy ........................................................................................ 30
[B]. A benefit is conferred .................................................................................................... 31
[C]. The FIT is a prohibited subsidy under Art.3, SCM. ...................................................... 33
VI. Wingardium prevents fair and legitimate use of registered trademarks by owners ........... 34
[A]. There exists a positive right to use trademark as per TRIPS......................................... 34
[B]. The Wingardium Trademarks Act (WTA) does not allow for restrictions on use of
trademarks. ............................................................................................................................ 36
[C]. Plain packaging leads to confusion and unfair competition, in violation of provisions of
Art. 16 of TRIPS ................................................................................................................... 37
VII. Wingardium unjustifiably encumbers the use of trademarks for C-Si Cells in the course of
trade through special requirements ........................................................................................... 38
[A]. Plain packaging rules and mandatory health warnings are special requirements ...... 38
[B]. Requirements are unjustifiable ...................................................................................... 38
[C]. Plain packaging requirements fall under examples of inherently unjustified actions, and
are hence explicitly illegal. ................................................................................................... 40
VIII. The DSU panel is competent to rule on the issues at hand .............................................. 41
[A]. The Energy Cooperation Agreement does not affect validity of dispute under DSU. .. 41
[B]. Wingardium has waived its right of arbitrating the dispute. ......................................... 42
[C]. Notwithstanding legality, the dispute under WTO need not be suspended. .................. 43
REQUEST FOR FINDINGS ................................................................................................................. 44
LIST OF ABBREVIATIONS
&
And
AB
Appellate Body
ADA
Anti-Dumping Agreement
Annex.
Annexure
Art.
Article
Arts.
Articles
CLI
Consortium of Leviosan Investors
C-Si
Crystalline Silicon
Dir.
Directive
10
DoHW
Department of Health, Wingardium
11
DSB
Dispute Settlement Board
12
DSM
Dispute Settlement Mechanism
13
DSU
Dispute Settlement Understanding
14
EC
European Communities
15
ECA
Energy Cooperation Agreement
16
FCTC
Framework Convention on Tobacco Control
17
FIT
Feed-in Tariff
18
GATT
General Agreement on Tariffs and Trade
19
GoW
Government of Wingardium
20
ITA
Indian Trademarks Act
21
LCR
Local Content Requirements
22
New York Convention/NYC
United Nations Conventions on the Recognition and

Enforcement of Foreign Arbitral Awards
23
NGO
Non-Governmental Organization
24
PAoW
Power Authority of Wingardium
25
PC
Paris Convention
26
PIL
Public International Law
27
PV
Photo-Voltaic
28
Redondo
Republic of Redondo
29
SCM
Agreement on Subsidies and Countervailing

Measures
30
Sec.
Section
31
TBT
Agreement on Technical Barriers to Trade
32
TF
Thin-Film
33
TM
Trademarks
34
TRIMS
Agreement on Trade Related Invested Measures
35
TRIPS
Agreement on Trade Related Aspects of International

Property Law
36
UNCITRAL
United Nations Commission on International Trade

Law
37
UNCITRALAR
United Nations Commission on International Trade

Law Arbitration Rules
38
UNCREFAA
United Nations Conventions on the Recognition and

Enforcement of Foreign Arbitral Awards
39
VCLT
Vienna Convention on the Law of Treaties
40
Wingardium
Republic of Wingardium
41
WMRE
Wingardium Ministry of Renewable Energy
42
WNSM
Wingardium National Solar Mission
43
WTA
Wingardium Trademarks Act
44
WTO
World Trade Organization
INDEX OF AUTHORITIES
WTO Appellate Body Reports

1. Appellate Body Report, Brazil Measures Affecting Imports of Retreaded Tyres,
WT/DS332/AB/R (Dec. 17, 2007).
2. Appellate Body Report, Canada Certain Measures Affecting the Automotive Industry,
119, WT/DS139/AB/R, WT/DS142/AB/R (Feb 11, 2000).
3. Appellate Body Report, China Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment Products,
WT/DS363/AB/R (Dec, 21, 2009).
4. Appellate Body Report, European Communities Measures Affecting Asbestos and
Products Containing Asbestos, WT/DS135/AB/R (Mar.12, 2001).
5. Appellate Body Report, European Communities Trade Description of Sardines, 189,
WT/DS231/AB/R (Oct. 23, 2002).
6. Appellate Body Report, Japan- Taxes on Alcoholic Beverages-II WT/DS8/AB/R (Oct. 4,
1996).
7. Appellate Body Report, United States Measures Affecting the Production & Sale of
Clove Cigarettes, 7.418, WT/DS406/AB/R (Apr. 4, 2012).
WTO Panel Reports

1. Panel Report, Canada - Administration of the Foreign Investment Review Act, L/5504
30S/140 (Feb. 7, 1984).
2. Panel Report, Canada Measures Affecting the Export of Civilian Aircraft, 9.112,
WT/DS70/R (Apr. 14, 1999).
3. Panel Report, Canada Measures Relating to the Feed-In Tariff Programme,
WT/DS412/R, WT/DS426/R (Dec. 19, 2012).
4. Panel Report, Dominican Republic Measures Affecting the Importation and Internal
Sale of Cigarettes, WT/DS302/R (Nov. 26, 2004).
5. Panel Report, European Communities Regime for the Distribution of Importation, Sale
and Bananas-III, WT/DS27/R/ECU (May 22, 1997).
6. Panel Report, India Measures Affecting the Automotive Sector, WT/DS146/R,
WT/DS175/R (Dec. 21, 2001).
7. Panel Report, Indonesia Certain Measures Affecting the Automobile Industry,

WT/DS54R (July 02, 1998).
8. Panel Report, Japan Measures Affecting Consumer Photographic Film and Paper,
WT/DS44/R (Mar. 31, 1998).
9. Panel Report, United States - Measures Affecting the Importation, Internal Sale and Use
of Tobacco, DS44/R (Oct. 4, 1994).
10. Panel Report, United States- Procurement of a Sonar Mapping System 26S/34 (Apr. 23,
1992).
11. Panel Report, US-Section 337 of the Tariff Act of 1930 and Amendments thereto.
12. Panel Report, Italian Discrimination against Imported Agricultural Machinery,
BISD 7S/60 (Oct. 23, 1958).
Books
1. ADAM LIBERMAN
ET AL.,
INTERNATIONAL LICENSING
AND
TECHNOLOGY TRANSFER:
PRACTICE AND THE LAW (2011).

2. BENN MCGRADY, TRADE AND PUBLIC HEALTH (2011).
3. D. GERVAIS, THE TRIPS AGREEMENT. DRAFTING HISTORY AND ANALYSIS (2008).
4. DANIEL GERVAIS, THE TRIPS AGREEMENT DRAFTING HISTORY
AND
ANALYSIS (2d ed.
2003).
5. DAVID PALMETER & PETROS C. MAVROIDIS, DISPUTE SETTLEMENT IN THE WORLD TRADE
ORGANISATION (2d ed. 2004).
6. DEVELOPING COUNTRIES IN THE WTO LEGAL SYSTEM (Chantal Thomas et al. eds., 2009).
7. DISPUTE RESOLUTION IN THE WTO (James Cameron et al. eds., 1st ed. 1999).
8. G. MARCEAU & JP TRACHTMAN, WTO DISPUTE SETTLEMENT SYSTEM (2003).
9. HENRI C. ALVAREZ, ET AL., MODEL LAW DECISIONS: CASES APPLYING UNCITRAL
MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION (2001).
10. ISABELLE VAN DAMME, TREATY INTERPRETATION BY THE WTO APPELLATE BODY (2009).
11. J.G. MERRILLS, INTERNATIONAL DISPUTE SETTLEMENT (5th ed. 2011).
12. JOHN H. JACKSON, SOVEREIGNTY,
THE
WTO,
AND
CHALLENGING FUNDAMENTALS
OF
INTERNATIONAL LAW (2006).

8
13. K.C. KAILASAM & RAMU VEDARAMAN, LAW
OF
TRADE MARKS & GEOGRAPHICAL
INDICATIONS (2d ed. 2005).

14. MANDA M ICHAELS, A PRACTICAL GUIDE TO TRADE MARK LAW (3d ed. 2002).
15. MARIE-FRANOISE MARAIS & THIBAULT LACHACINSKI, LAPPLICATION DES DROITS DE
PROPRIT INTELLECTUELLE (2006).
16. MAX PLANCK INSTITUTE OF COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW,
WTOINSTITUTIONS AND DISPUTE SETTLEMENT (Rdiger Wolfrum et al. eds., 2009).
17. MITSUO MATSUSHITA ET AL., THE WORLD TRADE ORGANISATION (3d ed. 2015).
18. NUNO PIRES DE CARVALHO, THE TRIPS REGIME OF TRADEMARKS AND DESIGNS (2nd ed.
2011).
19. PETER GALLAGHER, GUIDE TO THE WTO AND DEVELOPING COUNTRIES (2000).
20. RAVINDRA PRATAP, INDIA AT THE WTO (2004).
21. THE WTO AND INTERNATIONAL TRADE LAW / DISPUTE SETTLEMENT (Petros C. Mavroidis
et al. eds., 2005).
22. TRACY MURRAY, TRADE PREFERENCES FOR DEVELOPING COUNTRIES (1977).
23. UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENTINTERNATIONAL CENTRE
FOR TRADE AND SUSTAINABLE DEVELOPMENT, RESOURCE BOOK ON TRIPS AND
DEVELOPMENT: AN AUTHORITATIVE AND PRACTICAL GUIDE TO THE TRIPS AGREEMENT

(2005).
24. WON-MOG CHOI, LIKE PRODUCTS IN INTERNATIONAL TRADE LAW (2003).
25. WORLD INTELLECTUAL PROPERTY ORGANIZATION, THE ENFORCEMENT OF INTELLECTUAL
PROPERTY RIGHTS (3d ed. 2012).
Articles
1. International Centre for Trade and Sustainable Development, Feed-in Tariffs for
Renewable Energy and WTO Subsidy Rules: An Initial Legal Review, ISSN 1992-1675
(August 2011).
2. J.K Jackson, International Product Positioning, 16(3) JOURNAL OF INTERNATIONAL

BUSINESS STUDIES (autumn 1985).
Agreements and Conventions

1. UNCITRALs Model Law on International Commercial Arbitration.
2. Agreement on Subsidies and Countervailing Measures, Apr. 15, 1994, 1869 U.N.T.S. 14.
3. Agreement on Technical Barriers to Trade, Jan. 1, 1995, 1868 U.N.T.S.120, 18 I.L.M.
1079.
Miscellaneous
1. A.B.N. Amro Bank Canada v. Krupp MaK Maschinenbau GmBH, 135 D.L.R. (4 th) 130
(1996).
2. BWV Investments Ltd. v. Saskerferco Products Inc., 119 D.L.R. (4th) 577 (1994).
3. Catterpillar Inc v. Mehtab Ahmed, (2002) 25 PTC 438.
4. Corporacion Transnacional de Inversiones, S.A. de C.V., et al. v. STET International,
S.p.A. and STET International Netherlands, N.V. 45 O.R. (3d) 183 (1999).
5. Desputeaux v. Editions Chouette (1987) Inc., 1 S.C.R. 178 (2003).
6. Dictionary of Trade Policy Terms, 303 (4th edn., 2003).
7. Hlterhoff v. Freiesleben, I-4187 E.C.R. (2002) (Advocate General).
8. Merriam Webster Online Dictionary.
9. Nutrasweet Kelco Co. v. Royal Sweet International Technologies Ltd. Partnership, 49
B.C.L.R. (3d) 115 (1998).
10. Report by the Working Party on Border Tax Adjustments L/3464 (Nov., 20 1970).
11. Request for the Establishment of a Panel by Germany, United StatesCountervailing
Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, 123,
WT/DS213/AB/R (Nov. 28, 2002).
12. The Indian Trademarks Act of 1999, 9(2)(a), Acts of Parliament,1992 (India).
13. Westbrook International L.L.C. v. Westbrook Technologies Inc. 17 F. Supp. 2d 681
(1998).
10
STATEMENT OF FACTS
BACKGROUND
Wingardium is a country with a large population which has seen tremendous economic growth in
the past 10 years, with its GDP per capita. However, the fast pace of development, largely through
a booming manufacturing and services sector, took its toll on the environment. Wingardium began
to suffer from high levels of air pollution due to high concentrations of particulate matter. This
was largely due to its reliance on fossil fuel based conventional sources of electricity. As a result
of this, there was a need to shift to renewable energy to meet its growing power requirements. To
this end, the Wingardium National Solar Mission (WNSM) was initiated, which would encourage
producers to embrace solar based energy by offering attractive prices, which were contractually
fixed for a definite period. The scale of the WNSM attracted the attention of investors in another
country.
Leviosa is a developed country which has a very advanced solar technology industry, which
specializes in the production of Crystalline-Silicone based solar cells. The industry consortium
approached the Leviosan government collectively seeking cooperation with the Wingardian
government in the execution of the WNSM, seeing it as an excellent business opportunity.
After various negotiations, the two countries entered into an energy cooperation agreement. Under
this agreement, Leviosa transferred the know-how and technology behind the C-Si cells, to
establish a C-Si production industry in Wingardium. A noteworthy feature of the WNSM was a
mandatory 30% local content requirement for all firms using C-Si based technology. Leviosan
firms transferred substantial know how on the agreed parameters, with the ECA having been in
force for two years, Leviosan investors suffered losses to the tune of $5 billion due to the local
content requirements.
THE DISPUTE
On bearing such losses, the CLI sought the elimination of the LCRs by the Wingardian
government. The Wingardium government abided by its commitment to Leviosa, and did away
with the LCRs. However, this move met with stiff opposition in Wingardium, as the domestic CSi was forced to lay off many workers due to more competition from the Leviosan producers.
11
These large layoffs gave significant momentum to the campaign of members of the opposition,
who began exerting a great deal of pressure on the government and stalling decision making. This
policy paralysis negatively impacted the country image as an investment destination. To ameliorate
tensions, the President of Wingardium reinstated the LCRs with a now 50% LCR. This further
aggravated the losses of Leviosan investors.
The President of Leviosa conveyed his displeasure and threatened to bring a dispute before the
WTO dispute settlement Board, for violating its obligations under the WTO and the ECA. After
this, Wingardium enter into a similar ECA with Leviosa for the supply of thin-film based solar
technology. Reports emerged that the deal was signed to facilitate the eventual transfer of the
Wingardian C-Si industry to Redondo. While the Wingardian President denied this, various
officials confirmed the same.
At the same time, the Department of Health, Wingardium claimed that C-Si based cells have been
linked to severe allergies and even skin cancer. A Leviosan NGO conducted a study and found no
backing for such a claim. Yet, the Wingardian government implemented a plain packaging
measure requiring stringent disclosure of health hazards associated with the cells. The purported
objective of the measure was to discourage the use of C-Si cells to protect public health. This
further depleted the market share of the Leviosan investors to 10% of the market from 75% three
years earlier.
THE PANEL
In March, 2016, Leviosa requested consultations with Wingardium under the DSU. However the
consultaitons were unsuccessful, and the panel was established by the DSB. The following
violations were alleged by Leviosa in its request to establish the panel:
12
MEASURES AT ISSUE
I.
Article 2.1 of the TRIMS Agreement, because they appear to be trade-related

investment measures that are inconsistent with the provisions of Article III of the
GATT 1994.
II.
Article III:4 and III:5 of the GATT 1994 because they appear to be laws, regulations or
requirements affecting the internal sale, offering for sale, purchase, transportation,
distribution, or use of equipment for renewable energy generation facilities that accord
less favourable treatment to imported equipment than that accorded to like products
originating in Wingardium.
III.
Article III:1 of the GATT 1994 because the measures appear to require the mixture,
processing or use of equipment for renewable energy generation facilities supplied
from Leviosa in specified amounts or proportions, being applied so as to afford
protection to Wingardian production of such equipment.
IV.
Articles 3.1(b) and 3.2 of the SCM Agreement because it appears a subsidy in the form
of financial contribution or income or price support and ensuing benefit is to be
provided contingent upon the use of domestic over imported goods
V.
Article 20 of the TRIPS Agreement, because Wingardium unjustifiably encumbers the

use of trademarks for Crystalline Silicon Cells in the course of trade through special
requirements.
VI.
Article 16.1 of the TRIPS Agreement, because Wingardium prevents owners of

registered trademarks from enjoying the rights conferred by a trademark under the
Wingardian Trademark Act.
VII.
Article IX:4 of the GATT 1994, because Wingardium imposes requirements relating
to the marking of imported Crystalline Silicon Cells which materially reduce their value
and/or unreasonably increase their cost of production.
VIII.
Article 2.2 of the TBT Agreement, because Wingardium imposes technical regulations
that create unnecessary obstacles to trade and are more trade-restrictive than necessary
to fulfil a legitimate objective taking into account the risks that non-fulfilment would
create.
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SUMMARY OF PLEADINGS
I. WG/SM/P-1 VIOLATES ART.III OF GATT & ART. 2.1, TRIMS.

The measure violates Art.III:4,GATT
For a measure to violate Art. III:4, it must deal with two like products, affect their purchase or use
and treat the imported product less favorably. The imported and domestic products are like
products as the C-Si cells produced in Wingardium are based on a transfer of technology from
Leviosan C-Si manufacturers. The measure affects their purchase or use as it mandatorily requires
producers of solar power who employ C-Si technology to source at least 30% of their cells from
domestic sources. By mandating the purchase of domestic C-Si cells, the imported products are
accorded less favorable treatment.
The measure violates Art. III:5,GATT.
A measure violates Art. III:5 if it requires the use of a fixed proportion of domestic materials in
the production of a good or discourages imports and protects domestic industries. The Local
content requirement requires every C-Si based FIT partner to ensure 30% of the cells are
domestically manufactured. In doing so, it discourages imports vis a vis domestic products.
It is not government procurement under 3:8(a).
For the regulation to relate to government procurement it must be for immediate use or
consumption by the government. Further, the procurement must not be for a commercial purpose.
Here, the power is purchased by the government not for its own consumption, but for providing
people electricity on a commercial basis.
II. WG/SM/P-1 VIOLATES ART. IX,GATT

The measure violates Art. IX:4
The marking requirement materially reduces its value and unreasonably increases its cost. The
widespread animosity towards Leviosan will cause the demand for any Leviosan product so
identified to fall. Further, in imposing labelling requirements on imported and domestically
produced food alike, the domestic product is given an advantage.
14
III. THE IMPUGNED MEASURE IS NOT EXEMPTED UNDER ART. XX, GATT.
For a measure to be exempted under Art.XX it must have a legitimate objective, the policy must
be necessary to achieve that objective and must not violate the chapeau of Art. XX. It is not
exempted under Art. XX(b) as the objective of the policy is not the protection of human heath, and
the measures undertaken were not necessary to achieve the slated objectives. It discriminated
against imports and therefore violates the chapeaux of Art. XX.
IV. DIR. 141/PP/CST VIOLATES TBT

Dir. 141/PP/CST is a violation of Art. 2.2,TBT
The measure is a violation of the TBT agreement as it is a technical regulation as per Annexure
1. Further, it is a prohibited regulation under Art. 2.2 as it is trade discriminatory and does not
pursue a legitimate objective.
V. WG/SM/P-1 VIOLATES THE SCM AGREEMENT.
It violates Art. 3.1(a) and 3.2 of the SCM agreement.
A measure is said to violate the SCM agreement if a government makes a financial contribution
to a firm which confers a benefit on him.It violates the SCM agreement as there is a subsidy by
way of purchase and thereby confers a benefit to such a producer. In doing so it is a prohibited
subsidy within the meaning of Art. 3.2.
VI. WINGARDIUM PREVENTS FAIR AND LEGITIMATE USE OF REGISTERED TRADEMARKS BY
OWNERS
There exists a positive right to use a trademark

Under Art. 16.1 of the TRIPS, and as per other provision, there exists a positive right to use a
trademark, in addition to a negative right to prevent others from infringing upon ones trademark.
Not only is the right to use beneficial, but is essential to ensure that states arent able to dilute
provisions usage to an extent which leads to unfair competition.
Actions are in derogation of Wingardium Trademarks Act
15
The non-usage sections (Sec. 47) of the WTA necessitates continuous use, and hence implicitly
recognizes right to use. There exists no explicit provision or situation under the WTA which allows
for derogation of the right to sue. Further, blurring of lines between a trademark and its good has
been recognized as being unfair practice under the act. Restriction of right by way of plain
packaging, makes impossible visual differentiation between different solar cells.
VII. WINGARDIUM UNJUSTIFIABLY ENCUMBERS THE USE OF TRADEMARKS FOR C-SI CELLS IN
THE COURSE OF TRADE THROUGH SPECIAL REQUIREMENTS
Plain packaging rules are special requirements

Plain packaging requirements, specifically those which relate to positioning and font/color of
brand constitute special requirements for use in line with Art. 20 of the TRIPS.
Requirements are unjustifiable
Encumbrances placed fall within the two examples given under the second part of Art. 20, and are
inherently unjustified. Any justification would lead to a detrimental effect on international trade
and principles of WTO law.
Public health cant be used as exception
There is no certain, or identified threat to public health. Besides, standard of threat required has
not been met. Public health is a charade for favoring Redondo.
VIII. THE DSU PANEL IS COMPETENT TO RULE ON THE ISSUES AT HAND

The Energy Cooperation Agreement does not affect validity of dispute under DSU
The Arbitration clause as per UNCITRAL AR isnt binding upon parties, and there exists no
obligation on the DSU to refer the matter to arbitration like an ordinary court. The WTO DSU is
the ultimate final authority on interpretation of WTO Agreements.
Wingardium has waived its right of arbitrating the dispute
Lack of challenge or objection at the stage of establishment of panel constitutes waiver of right to
avail arbitration.
16
LEGAL PLEADINGS
I. WG/SM/P-1 VIOLATES ART. III OF THE GATT AND ART. 2.2 OF TRIMS.
1.
The basic principles of Art. III prevent discrimination and domestic protectionism. In
establishing a violation of GATT Arts. III and XI, one must simultaneously test its compliance
with Art. 2.1 of TRIMS1. Therefore, the impugned measures of Wingardium which require
mandatory local content violate Art. III: 4[A] and III: 5[B] of the GATT. Further it is not
Government procurement within GATT, Art.III:8(a).[C]
[A]. It violates Art.III:4
2.
Products must be like products [1], with requirements affecting their purchase or use [2],
and that imported products are accorded less favorable treatment [3] for a violation to be
committed.
[1]. THE PRODUCTS ARE LIKE
3.
The products at issue are C-Si solar cells. Likeness is determined by a holistic
consideration2 of certain criteria. 3 These are:

(i) The properties, nature and the quality of products
4.
The C-Si cells produced in Wingardium are based on a transfer of technology agreement
which transferred know-how from the CLI under an ECA. Wingardian C-Si cells are therefore
Appellate Body Report, Japan- Taxes on Alcoholic Beverages-II WT/DS8/AB/R (Oct. 4, 1996); Appellate Body
Report, European Communities Measures Affecting Asbestos and Products Containing Asbestos, 117,
WT/DS135/AB/R (Mar.12, 2001); Panel Report, European Communities Regime for the Distribution of Importation,
Sale and Bananas-III, 7.182, WT/DS27/R/ECU (May 22, 1997).
2
Appellate Body Report, European Communities Measures Affecting Asbestos and Products Containing Asbestos,
101-103, WT/DS135/AB/R (Mar.12, 2001).
3
Report by the Working Party on Border Tax Adjustments L/3464 (Nov., 20 1970).
17
based on Leviosan manufacturers technology4 and physical characteristics of the cells are
identical.
(ii) The end uses of products.
5.
The cells produced in Wingardium and Leviosa have similar characteristics due to being
based on the same technology and manufacturing process. The two products have similar end uses
for WNSM aims to replicate the development of the Solar power sector in Leviosa.5
(iii) Consumers perceptions in respect of the products.
6.
In the absence of any objective criteria, analysis of customer preferences must be based
upon manufacturers of panels, they being the specific customers at hand. Price, efficiency,
performance characteristics, and reliability, are hence the relevant factors among others.
[2]. THE IMPUGNED MEASURE IS A REQUIREMENT WITHIN THE MEANING OF ART. III: 4.
7.
For a measure to be a requirement under Art. III:4 it must be a requirement[i] affecting the
internal sale or offering for sale of products.[ii].

(i) The measure is a requirement within the meaning of Art. III:4.
8.
Requirement is said to exist if the obligations are such that an enterprise is legally bound
to carry them out. It includes voluntarily acceptance to obtain an advantage from the government.6
A firm seeking to produce PV Panels using C-Si cells is obligated to ensure that 30% of the cells
are manufactured domestically. A producer of solar power seeking to employ C-Si cells must still
opt into the requirement to avail of the benefits under the FIT scheme, and is hence a requirement.7
(ii) It affects the internal sale of products.
9.
Affecting has been interpreted to mean governing the conditions of sale, and also adverse
effects on the competitive conditions between the products8. It affects internal sale or conditions
Annex. II, Fact on Record.

5, Fact on Record.
6
Panel Report, India Measures Affecting the Automotive Sector, 7.191, WT/DS146/R, WT/DS175/R (Dec. 21,
2001).
7
Panel Report, Canada - Administration of the Foreign Investment Review Act, 5.4, L/5504 30S/140 (Feb. 7,
1984).
8
Panel Report, Italian Discrimination Against Imported Agricultural Machinery, 12, BISD 7S/60 (Oct. 23, 1958).
5
18
of sale of the product if it impacts decision of private firms.9 A producer of solar power who has
decided to employ C-Si based panels would have to choose 30% of cells from local manufacturers,
in disregard of his freedom to choose between imported and domestically produced cells based on
capabilities, price and other economic considerations. The requirement hence affects the
competitive relationship between imported and domestically produced C-Si cells is affected.
[3]. IT ACCORDS LESS FAVORABLE TREATMENT TO IMPORTED PRODUCTS

10.
A measure treats imported products less favorably if it affects the competitive relationship
between the two products or even if in according formal equality, it results in less favorable
treatment. No less favorable treatment signifies equality of competitive conditions between
imported products and domestic like products.10 It further entails equality of opportunity with
regards to internal sale or distribution.11 The measures require every producer employing C-Si
cells to ensure that 30% are domestically produced. The competitive relationship is therefore
damaged.
11.
Further in according products de jure equality, it leads to de facto discrimination against
imported products as the imported products must be separately labelled after the production
process to comply with the requirements unique to Wingardium, resulting in higher costs. While
domestic manufacturers can label the products on the production line itself, incurring no such cost.
[B]. It violates Art. III: 5.
12.
Art. III:5 contains two substantive statements. The second sentence is invoked only when
the first is inapplicable. A conclusive finding under one provision is independent of an affirmative
finding under the other. 12
[1]. THE MEASURE REQUIRES THE USE OF A SPECIFIC PROPORTION OF DOMESTIC MATERIALS
Panel Report, Italian Discrimination Against Imported Agricultural Machinery, 12, BISD 7S/60 (Oct. 23, 1958).
Panel Report, Japan Measures Affecting Consumer Photographic Film and Paper, 10.739, WT/DS44/R (Mar.
31, 1998).
11
Panel Report, US-Section 337 of the Tariff Act of 1930 and Amendments thereto, 5.11.
12
Panel Report, United States - Measures Affecting the Importation, Internal Sale and Use of Tobacco, DS44/R (Oct.
4, 1994).
10
19
13.
A regulation will be said to be in violation of Art. III:5 first sentence, if it is a quantitative
regulations[i] requiring the use of a specified proportion of materials sourced from domestic
sources[ii].
(i) The regulation is a quantitative regulation
14.
Whether the conditions imposed are regulations is determined by their origin.13 The test
employed is whether the impugned measures have been created by a body empowered by law to
do so.14 Document WG/SM/P-1 of the WMRE lays down the requirement, and compliance with
the program is overseen by a government controlled Power Authority as was the case in the Ontario
FIT scheme.15 It has been initiated by a body empowered by law to impose such requirements.
Further, the WNSM was amended twice to implement policy changes. Therefore, it can be
concluded that the requirements are quantitative regulations within the meaning of Art. III:5.
(ii) Mandating domestic sourcing
15.
The WNSMs mission mandates plants employing C-Si technology to ensure 30% local
sourcing. This requirement of mandatory local content is against Art. III:5, GATT.
[2]. IT IS AN INTERNAL QUANTITATIVE REGULATION CONTRARY TO THE PRINCIPLES OF ART. III:1.
16.
Art. III:5 second sentence applies to any internal quantitative regulation that has the effect
of discouraging imported products vis--vis domestically produced products, or avoids protection

to domestically produced products. To establish a violation of Art. III:5 second sentence, there
must be an internal quantitative regulation [i] and it must be against the principles of Art. III:1 [ii].
(i) Quantitative regulation
17.
Quantitative restriction means specific limitations on the quantity of goods that can be
imported or exported,16 while regulation means actions or procedures implemented by

governments with a view to influencing the industry or customers of an industry in a particular
manner17. In the absence of a specific interpretation of qualitative regulation, a quantitative
13
Panel Report, United States- Procurement of a Sonar Mapping System 26S/34 (Apr. 23, 1992).
15
Art. 5, 6, Fact on Record.
16
DICTIONARY OF TRADE POLICY TERMS, 303 (4th edn., 2003).
17
14
20
regulation is a rule or procedure implemented by a government which requires a certain proportion

of materials to be present or absent in a product on the basis of its place of origin. Wingardian
measures fall within the definition of a quantitative regulation under Art. III:5.
(ii) The quantitative regulation is against the principle of Art. III:1.
18.
A quantitative regulation is against the principles of Art. III:1, if it discourages imported
products or protects domestic products 18. The measures requiring local content in all C-Si based
projects encourages use of domestic cells over imported ones, leading to effective protection19 of
domestic C-Si industries from international competition.
[C]. It is not government procurement within the meaning of Art. III:8(a)
19.
The provisions of Art. III do not apply to government procurement for governmental
purposes and for commercial resale.

[1]. NOT GOVERNMENT PROCUREMENT
20.
The GoW purchases the power produced by solar producers through a Power Authority 20.
To constitute government procurement, the products purchased must be for immediate government
consumption in governmental use or for government purposes.21 A product is for government
purposes if the payment is made by the government (i) for government use of the product (ii) or
where there is government control over the procurement of the product (iii).22
(i) Payment is not made by the government
21.
Under the FIT scheme the power produced is purchased by the PAoW, with the GoW
paying for electricity produced. But, the product is the solar cells itself, which arent purchased
with government money. Although purchases of a private contractor have been held to be
government procurement, a difference is that in the Sonar mapping case, the contractor was
18
Appellate Body Report, Japan- Taxes on Alcoholic Beverages-II, 16, WT/DS8/AB/R (Oct. 4, 1996); Panel
Report, Italian Discrimination Against Imported Agricultural Machinery, 11, BISD 7S/60 (Oct. 23, 1958).
19
20
Art. 5, 6, Fact on Record.
21
22
21
reimbursed by the Government for its expenses. In the absence of such a clause in the instant case,
the purchase of solar cells by power producers cannot be said to be with government money.
(ii) No government benefit from the product.
22.
The product purchased by the Government is different from the product targeted by the
measures, with both being distinct and incomparable. 23 The GoW purchases electricity, while the
product subject to measure is power production equipment. Since Art. III:8(a) must be construed
keeping in mind Art. III:1, the application of Art. III:8(a) requires discrimination between two like
products one of which is procured by the government. Electricity and electricity generation
equipment being different, Art. III:8(a) cannot be applied.
(iii) No government control over the procurement of the product
23.
The government of Wingardium, exercises no control on the product (solar cells),
ultimately purchased by power producers. The producer can choose between TF or C-Si cells, and
domestic or imported C-Si or TF cells. In US-Sonar Mapping, owing to the profound control over
the procurement reflected by right to cancel a contract entered into between contractor and a third
party, as a government procurement.24 In the absence of any such control with the Government of
Wingardium, the measure cannot be said to deal with government procurement.
[2]. ASSUMING IT IS GOVERNMENT PROCUREMENT, IT IS FOR COMMERCIAL RESALE

24.
Art. III:8(a) is inapplicable to procurement for commercial purpose. The purchase of
electricity is for commercial resale and is beyond the scope of Art. III:8(a). Commercial resale
means sale at an arms length, where seller seeks to maximize his profits and the buyer seeks to
maximize his interests. 25 However, short term loss may be in the long term strategy of the seller 26.
Therefore, the absence of profit motive will not take away from the commercial nature of the
Panel Report, Canada Measures Relating to the Feed-In Tariff Programme, WT/DS412/R, WT/DS426/R (Dec.
19, 2012).
24
25
19, 2012).
26
19, 2012).
23
22
transaction. The transaction is therefore a sale at arms length as discussed by the Appellate Body
in Canada-FIT,27 and consequently is one undertaken with a commercial purpose, and hence not
exempted.
II. THE WINGARDIAN MEASURE IMPLEMENTS AND REQUIRES MARKS OF ORIGIN.
25.
A measure implemented by a contracting party requiring producers of a specified product
to specify the country of origin would be in violation of Art. IX: 4 of the GATT if it requires their
marking in such a way that materially reduce its value [A] or unreasonably increases its cost [B]
[A]. The marking requirement materially reduces its value
26.
Material although not defined under GATT, has been interpreted under the ADA as in
part of material injury, which is exhibited by a decline in sales, profits, market share or return on
investment,28 value means the monetary worth of something. 29 It is submitted that reduction in
material value means a reduction in the price, revenue or market share of a product due to the
application of country of origin requirements to imported products.
27.
Material value will be reduced because of the present tumultuous relationship and
considerable resentment between the two countries. As a result, the identification of a product as
originating in Leviosa will lead to an unfavorable perception of the product and would
considerably impact the revenue and market share of the C-Si cells manufactured in Leviosa.30
Further, the purpose behind the Labelling measures implemented by Wingardium is to give
consumers all the information that they require to make an informed decision to buy after
considering the associated health risks.31 There exists no nexus between information about health
19, 2012).
28
DICTIONARY OF TRADE POLICY TERMS 303 (4th ed. 2003).
29
MERRIAM WEBSTER ONLINE DICTIONARY.
30
See J.K Jackson, International Product Positioning, 16(3) JOURNAL OF INTERNATIONAL BUSINESS STUDIES, 68
(AUTUMN 1985).
31
Annex. VIII, Fact on Record.
27
23
risks and country of origin as both imported and domestic C-Si panels are produced using the same
technology.
[B]. Unreasonably increases cost.
28.
A labelling or other compulsory identification can have a disparate impact and lead to an
increase in the costs in a manner such that the cost is greater for the imported products than like
domestic products. 32
29.
A legal requirement that applied in a (formally) equal manner to both imported and
domestic like-products could lead to greater costs for the imported product. This is because the
labels can be placed on domestic products during production process itself; but in the case of an
imported product an entire additional process had to be undertaken has been accepted by a Panel.33
The cost and effect is greater for imported products, which adversely affects their competitive
relationship leading to losses in revenue and market share. Therefore, the Wingardian labelling
measure requiring country of origin disclosures violates Art. IX of the GATT.
III. THE IMPUGNED MEASURES DO NOT FALL WITHIN ANY OF THE EXCEPTIONS UNDER ART. XX
OF THE GATT
[A]. The Wingardian labelling requirements are not exempted under Art. XX(b).
30.
Art. XX(b) exempts measures which are necessary to protect human, animal or plant life
or health. For a measure to claim an exemption under Art. XX(b), the policy in question must fall
within the range designed to protect human, animal or plant life or health [1]. The inconsistent
measures invoking the exception must be necessary to fulfill the policy objective [2] and the
measures must be applied in conformity with the introductory clause of Art. XX [3].
Panel Report, Dominican Republic Measures Affecting the Importation and Internal Sale of Cigarettes,
WT/DS302/R (Nov. 26, 2004).
33
WT/DS302/R (Nov. 26, 2004).
32
24
[1]. The policy sought to be achieved by the impugned measure was not the protection of human
health.
31.
The structure and working of the scheme demonstrates that discouragement of the use of
imported C-Si cells, as evidenced by RFID tagging and packaging requirements, and not protection
of human health was the policy objective. The requirements mandate display and disclosure of
information which does not add any relevant information to the decision making process of the
consumer. Masquerading under safety is the true intention of identifying the country of origin. The
policy being pursued was to restrict and decrease the market share of Leviosan C-Si cells, and is
exacerbated by the misguided animosity held by citizens of Wingardium against Leviosa and its
corporations.34
[2]. The measures implemented were not necessary to achieve the policy objectives
32.
For a measure to be necessary, it must contribute to the achievement of the objective [i]
based on scientific data collection and risk assessment [ii] and having considered the reasonably
available alternatives.[iii]
(i) It does not contribute to the achievement of the policy objective
33.
There must be a relationship between the means adopted and the end sought to be achieved
for there to be any contribution35. The measures do not help the proclaimed objective of reducing
adverse health impact. The measures may reduce the market share of C-Si cells, but does not
protect consumers from adverse health effects caused by exposure to C-Si cells. Therefore, the
measures are not apt to contribute to the policy objectives in the given instance 36.
(ii) Not based on scientific data collection and risk assessment.
34.
The entire public health argument is reliant on a single preliminary (and inconclusive)
study by the DoHW, and not on sufficient evidence as required under Art. XX(b) 37. The study
contradicts quality testing tests carried out by Wingardium authorized test centers and Wingardium
34
16, Fact on Record.

Appellate Body Report, Brazil Measures Affecting Imports of Retreaded Tyres, 145, WT/DS332/AB/R (Dec.
17, 2007).
36
Appellate Body Report, Brazil Measures Affecting Imports of Retreaded Tyres, 151, WT/DS332/AB/R (Dec.
17, 2007).
37
Appellate Body Report, Brazil Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R (Dec. 17, 2007).
35
25
law, which certify that the panels meet IEC 61730 and IEC 43070. Further, independent testing by
NGOs show no health risks. Therefore, the preliminary test results based on which the Wingardian
measure was undertaken cannot be said to be made on a consideration of scientific data and risk
assessment.
(iii) There exist reasonably available alternatives
35.
If there exist viable alternatives to the impugned measure, then the same cant be deemed
necessary for the purposes of Art. XX (b). The reasonably available alternative proposed is a
measure requiring all retail outlets or points of sale where C-Si panels, whether imported or
domestic, can be purchased be mandated to display posters and notice boards, drawing attention
to the hazardous health risks of C-Si cells. The Appellate Body has laid down a test under Art.
XX(d)38 which looks at the extent to which the alternative contributes to the realization of the end
pursued(a), the difficulty of implementation(b), and trade impact of the alternative measure as
compared to the impugned measure(c).
(a) Contributes to the end pursued.
36.
The end pursued here is the protection of human health by increasing consumer awareness
about the health risks of using C-Si technology, and in this way allowing them to make an informed
decision shaving considered the health hazards.
(b) It is not difficult or more difficult to implement
37.
The implementation of the above measures is not at any rate more difficult than the
implementation of the product labelling measure as all points of sale of such products are known
and identifiable. Therefore, it would require equal effort to implement than to ensure that each
producer of C-Si cells comply with the strenuous criteria set down in the impugned measure.
(c) The trade impact of the alternative is less restrictive than the impugned measure.
38.
The impact of the proposed alternative measure is less restrictive than the impugned
measure as the same imposes greater costs on imported products than like domestic products.
Labelling requirement like the one here, requires imported products to go through an additional
38
G. MARCEAU & JP TRACHTMAN, WTO DISPUTE SETTLEMENT SYSTEM, 290 (2003); Appellate Body Report, China
Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual
Entertainment Products, WT/DS363/AB/R (Dec, 21, 2009).
26
processing stage adding to the cost of producers, and adversely impacting their competitive ability
vis--vis domestic products 39.
[3]. THE MEASURES APPLIED VIOLATE THE CHAPEAU OF ART. XX OF THE GATT.
39.
Art. XX of the GATT allows measures inconsistent with the obligations under the GATT
if they fall within the exceptions listed in clauses (a)-(g), provided they are not arbitrary,
unjustifiable, or disguised restrictions on international trade. The purpose of the measure
implemented by the Wingardian government is to decrease the use of the C-Si technology in
Wingardium, resulting in the indirect closure of domestic manufacturers.
IV. Directive 141/PP/CST violates Art. 2.2, TBT.
40.
For a measure to violate the TBT, it must first be established as a technical regulation. The
measure is a technical regulation [A]. Further, it is a prohibited regulation under Art. 2.2[B].
[A]. It is a technical regulation.
41.
Annex 1.1 to the TBT Agreement lays down the ingredients required for a technical
regulation. In EC Asbestos, the Appellate Body further gave guidelines to be followed in

identifying a technical regulation. It must apply to an identifiable group of products [1], it must
lay down product characteristics or processes and production methods [2]; and, compliance with
it must be mandatory [3].40
[1]. THE MEASURE APPLIES TO AN IDENTIFIABLE GROUP OF PRODUCTS.
42.
The directive specifically applies to Solar Cells & Modules,41 including both Thin Film
and C-Si Cells. These being specific products, they can be identified as a distinct group.
WT/DS302/R (Nov. 26, 2004).
40
Appellate Body Report, European Communities Measures Affecting Asbestos and Asbestos-Containing Products,
66, WT/DS135/AB/R (Mar.12, 2001).
41
39
27
[2]. THE MEASURE LAYS DOWN CERTAIN PRODUCT CHARACTERISTICS.

43.
The specifications to be followed in the packaging of cells are very specific with respect to
the marking and packaging of PV modules and cells. According to Annex-1.1 of TBT, these42
constitute product characteristics. This clearly indicates that a product characteristic may include,
not only features and qualities intrinsic to the product itself, but also related features such as means
of identification, presentation and appearance of a product.43 Therefore, the directive in question
fulfills the criterion of laying down product characteristics under Annex 1.1 of the TBT
Agreement.
[3]. COMPLIANCE WITH THE MEASURES IS MANDATORY
44.
The Plain Packaging of Solar Cells directive has to be strictly adhered to from the date of
its issue. The directive is of a mandatory nature, which is evident from the use of phrases like
must be adopted44 in the document. Therefore, the third requirement of the definition of
technical regulation is also met with. Therefore the directive is a technical regulation as per the
TBT Agreement.
[B]. It is prohibited under Art.2.2, TBT.
45.
Article 2.2 of the TBT Agreement prohibits technical regulations creating unnecessary
obstacle to international trade. To violate Art. 2.2, a technical regulation must: not pursue a
legitimate objective [1]; and must be more trade-restrictive than necessary [2].
[1]. IT DOES NOT PURSUE A LEGITIMATE OBJECTIVE

46.
The objective of the directive, as laid down, is reducing the appeal of C-Si Cells in the
short term, to eventually bring cells and PVs using this technology out of use altogether. This is
42
Annex. VIII, Fact on Record; Agreement on Technical Barriers to Trade, Annex. 1.1, Jan. 1, 1995, 1868
U.N.T.S.120, 18 I.L.M. 1079.
43
Appellate Body Report, European Communities Measures Affecting Asbestos and Asbestos-Containing Products,
67, WT/DS135/AB/R (Mar.12, 2001).; Appellate Body Report, European Communities Trade Description of
Sardines, 189, WT/DS231/AB/R (Oct. 23, 2002) [hereinafter EC Sardines Appellate Body Report].
44
28
caused by the Wingardian governments claim that cells using C-Si technology are a health hazard.
However, the true objective of the directive is hampering international trade.
(i) The objective is to transfer the C-Si industry to Redondo
47.
Wingardium signed an Energy Cooperation Deal with Redondo for thin film technology.
Reports suggest the signing of this deal facilitates the transfer of the C-Si industry to Redondo.45
Soon after this, claims were made by the DoHW, about the health hazards posed by C-Si
technology.
48.
These claims were only made to stop the use of C-Si technology in Wingardium altogether
so that the same could be transferred to Redondo instead. Owing to the Energy Cooperation
Agreement with Redondo, Wingardium aimed to only use thin film technology. This is the ulterior
objective being pursued by Wingardium and is being guised as a human health matter because of
its trade distortive nature.
49.
Therefore, it is submitted that the health-related objectives stated under Directive
141/PP/CST are only a means to distract from the real objective. This, being neither a legitimate
nor a legal objective, falls under the purview of Article 2.2 of the TBT Agreement. Therefore, the
Directive must be struck down for being in violation of the TBT Agreement.
(ii) In any case, if the objective of the directive is legitimate, it is not based on conclusive
or adequate scientific study.
50.
Assuming the objective is protection of health, it is not supported by adequate scientific
study or data. Wingardiums claims about the health hazards of C-Si technology are based on a
preliminary study conducted by the DoHW and by a study conducted by a Wingardian NGO.
However, the C-Si has been tested by a Leviosan NGO confirming its safety. Further, the
technology has also passed all quality, health and safety standards which had been stipulated under
the WG/SM/P-1, the enabling document of the WNSM. It must also be noted that C-Si technology
has been in use in Leviosa and other countries for almost a decade, since its invention in 2006. In
all this time, the technology has not resulted in fatal allergies, cancer or any other health hazards.
45
16, Fact on Record.
29
Therefore, the study done by Wingardium on C-Si technology is not based on adequate research,
and has not taken into account available scientific information as required by Art. 2.2, TBT. 46
(iii) The measures are more restrictive than necessary.
51.
Assuming the objective is legitimate, it is excessively trade restrictive. Once the objective
has been identified, less trade restrictive alternative to achieve the object must be identified.47
Similar health warnings can be displayed in places where solar panels and solar cells are procured
by developers. Such an alternative measures would help in reducing the appeal of Crystalline
Technology and dissuading prospective users. Thus, they would serve the objective of without
being more trade restrictive than necessary.
V. THE FIT SCHEME VIOLATES THE SCM AGREEMENT
52.
Under FIT Scheme, a producer is paid a fixed price for the electricity produced but involves
a domestic content requirement.48 Such a scheme is in the nature of a subsidy expressly prohibited
under Art. 3, SCM.
[A]. The FIT Scheme is a subsidy
53.
The FIT Scheme satisfies the definition of a subsidy laid down under Article 1 of the
SCM Agreement. As under this article, the two prerequisites required to establish the existence of
a subsidy are [1] a financial contribution made by a government and [2] a benefit is conferred by
such contribution.49
[1]. FINANCIAL CONTRIBUTION
46
Agreement on Technical Barriers to Trade, Art. 2.2, Jan. 1, 1995, 1868 U.N.T.S.120, 18 I.L.M. 1079.
Appellate Body Report, United States Measures Affecting the Production & Sale of Clove Cigarettes, 7.418,
WT/DS406/AB/R (Apr. 4, 2012) [hereinafter US Clove Cigarettes Appellate Body Report]; Appellate Body Report,
Brazil Measures Affecting Imports of Retreaded Tyres, 156, WT/DS332/AB/R (Dec. 17, 2007).
48
Art.5, 6, Fact on Record.
49
Agreement on Subsidies and Countervailing Measures, Art. 1, Apr. 15, 1994, 1869 U.N.T.S. 14.
47
30
54.
A financial contribution by a government can be in the form of purchase of goods by the
government.50 The FIT program involves payment by the government to power producers for the
electricity produced.
(i) There is a transfer of funds to producers.
55.
The Wingardian government pays the producers for the electricity supplied. Funds are only
transferred to suppliers for electricity delivered into the grid. There is no element of grant in the
FIT scheme.
(ii) Government obtains possession of the electricity
56.
The Government takes possession over the electricity produced on its purchase. Obtaining
possession here includes an entitlement over, and not actual physical possession of the electricity.
Given the nature of electricity, physical transfer of possession is not possible. But a transfer of an
entitlement from the producers to the government is a means of transferring possession of
electricity.
(iii) The transaction is one of procurement by purchase.

57.
The enabling documents and guidelines of the FIT scheme, being modelled on the Ontario
Feed-in Tariff scheme, provide for the purchase of power by a government owned power authority.
Therefore, the FIT scheme is a financial contribution in the nature of a purchase of goods by the
government, within the meaning of the SCM Agreement.
[B]. A benefit is conferred

58.
To establish a benefit, the guidelines provided under Art. 14, SCM are used to evaluate the
consideration. The determining standard here is the market price.51 However, this is not suitable
in the present case.
50
51
Agreement on Subsidies and Countervailing Measures, Art. 1.1(a)(1)(iii), Apr. 15, 1994, 1869 U.N.T.S. 14.
Panel Report, Canada Measures Affecting the Export of Civilian Aircraft, 9.112, WT/DS70/R (Apr. 14, 1999).
31
[1]. THE MARKET CONDITIONS ARE NOT APPROPRIATE FOR COMPARISON.

59.
The market for electricity does not exist freely without any government intervention, which
is usually aimed at controlling price volatility and stabilizing prices. Being an energy market, it is
influenced by the interaction of natural cartels, derivative trading, political events, government
regulations, inter alia.52 Secondly, the existence of grid solar power projects is a creation of the
government. Being introduced in the market solely due to government intervention, their very
presence in the electricity market distorts the market.
[2]. THE FIT SCHEME PAYS MORE REMUNERATION
60.
WG/SM/P-153 provides for the FIT Scheme to be similar to the Ontario Feed-in-Tariff
Scheme. Under the Ontario scheme, the Hourly Ontario Energy Price, which reflects the market
price of electricity, is far below the price paid through the FIT programme to competitive electricity
providers.54 Being modelled on this FIT Programme, the Wingardian FIT Scheme pays higher
remuneration to power producers than those received by their competitors using conventional
methods in the open market. Thus, the remuneration received under the FIT Scheme is more than
adequate.55
[3]. BENEFITS ARE BEING CONFERRED ON THE PRODUCERS OF ELECTRICITY BY OTHER MEANS.
61.
The benefit conferred under Article 1, SCM is not limited to the adequacy of the
remuneration. Under the FIT Scheme, other benefits are being conferred on solar power producers
(i) The producers entered the market due to the FIT.
62.
In the absence of WNSM, producers would not have entered the market due to high costs.
The competition from established conventional producers served as a barrier to entry. It was
52
International Centre for Trade and Sustainable Development, Feed-in Tariffs for Renewable Energy and WTO
Subsidy Rules: An Initial Legal Review, ISSN 1992-1675 (August 2011).
53
Art.5, 6, Fact on Record.
54
International Centre for Trade and Sustainable Development, Feed-in Tariffs for Renewable Energy and WTO
Subsidy Rules: An Initial Legal Review, ISSN 1992-1675 (August 2011).
55
32
however held by a panelist that a benefit nonetheless existed for the producers of renewable energy
as their mere presence on the market was the result of the governments help. 56
(ii) The contracts under the FIT Scheme are long-term contracts.
63.
Contracts under the FIT Scheme are entered into a period of not less than 20 years.57 The
long contractual period ensures fixed returns in the future, which eliminates major risks of
fluctuating returns.
(iii) It confers a competitive advantage
64.
Government backing and fixed returns give a competitive advantage to the electricity
producers under the FIT Scheme. The benefit was determined by testing whether the financial
contribution placed the recipient in a more advantageous position than would have been the case
but for the financial contribution. 58 Employing this test, the FIT producers are in a better position.
Therefore, the FIT Scheme is a subsidy under Article 1, SCM.
[C]. The FIT is a prohibited subsidy under Art.3, SCM.
65.
Article 3.1(b) of the SCM Agreement prohibits subsidies contingent upon the use of
domestic over imported goods. 59 Article 3.2 further prohibits a country from granting or
maintaining such subsidies. The FIT Scheme falls under the category of such subsidies.
[1]. THE FIT SCHEME IS PROHIBITED BY ARTICLE 3.1(B), SCM.
66.
Under Article 3.1(b), de facto as well as de jure subsidies contingent upon the use of
domestic are covered.

(i) The FIT Scheme is contingent upon the use of domestic over imported goods.
Panel Report, Canada Measures Relating to the Feed-In Tariff Programme, 9.2, WT/DS412/R, WT/DS426/R
(Dec. 19, 2012).
57
Panel Report, Canada Measures Relating to the Feed-In Tariff Programme, 7.38, WT/DS412/R, WT/DS426/R
(Dec. 19, 2012)..
58
59
56
33
67.
The word contingent under Article 3 has been interpreted by the AB to mean
conditional or dependent for its existence on something else. 60 The domestic content
requirement being mandatory under the FIT Scheme, it is a necessary prerequisite for all projects.
It is one of the necessary conditions envisaged under the FIT Scheme. Therefore, the FIT Scheme
is contingent upon the use of domestic over imported goods by way of the domestic content
requirement clause.
(ii) The FIT Scheme is a dejure subsidy.
68.
Articles 4.1 and 5 of the WG/SM/P-1 make a 30% local content requirement mandatory
for all projects under the FIT Scheme. This domestic content requirement was later hiked to 50%
by way of the Executive Order WG/SMEO/119.61
The AB has interpreted subsidies under Article 3.1(b) to include both dejure as well as defacto
subsidy.62 Since the contingency on the domestic content requirement has been expressly set out
in a legal instrument, WG/SM/P-1, it qualifies as a dejure subsidy under Article 3.1(b).
[2]. THE FIT SCHEME VIOLATES ARTICLE 3 OF THE SCM AGREEMENT.

69.
Being a subsidy contingent upon the use of domestic over imported goods due to the
mandatory domestic content requirement clause, the FIT Scheme violates Article 3 of the SCM
Agreement. Therefore, it is a subsidy prohibited under the SCM Agreement.
VI. WINGARDIUM PREVENTS FAIR AND LEGITIMATE USE OF REGISTERED TRADEMARKS BY

OWNERS
[A]. There exists a positive right to use trademark as per TRIPS

70.
The TRIPS agreement doesnt envisage trademark protections as solely being the right to
exclude others from third-party use. Rather, the wordings of Art. 20, Art. 16, Art. 8.1 & the
62
Appellate Body Report, Canada Certain Measures Affecting the Automotive Industry, 119, WT/DS139/AB/R,
WT/DS142/AB/R (Feb 11, 2000).
60
61
34
discussions during the consultative stages shows the inclusion of a positive element. 63 An offensive
right is envisaged which entitles the proprietor to exploit the object on which it bears, both directly
and by delegation, in addition to defensive rights. 64 A trademark holder gets it registered not in
order to prevent others from using it, but rather in order to use it himself (although exclusivity
being a necessary corollary). 65
[1]. HOLISTIC CONSTRUCTION OF ART. 16 DEMONSTRATES RIGHT TO USE
71.
Whilst construing the provisions of the TRIPS Agreement, it is necessary to not only look
at the plain language interpretation, or resolutions of DSU panels, but principles of Private
International Law and as implemented across various territories must be considered. 66 The TRIPS
lays down minimum standards, and principles regarding treatment of intellectual property. The
TRIPS is identifiably vague, with the intention of enabling dynamic interpretation. 67 The
intricacies and implementation is left to individual countries, who are awarded flexibility on the
same. Countries can extend greater protection than envisioned under the TRIPS, but the same must
uniformly apply to all WTO members, and the same would be judiciable under the WTO Dispute
Settlement mechanism.
[2]. RIGHT TO USE NECESSARY TO PREVENT ABROGATION OF TRADEMARKS, AS EVIDENCED BY ART.
6BIS OF PC, AND EXEMPTION UNDER ART. 17.
72.
Art. 16 does not only cover exclusive rights. Protection is granted not only against
infringement of identity, but also against confusion. A complete derogation to the right of use
would create a scenario where it would be impossible to differentiate goods of trademark holders
from competitors. Hence, minimum rights to use are necessary for preventing unfair competition.
A reading along with Art. 6bis of the Paris PC, demonstrates the inherent minimum right to use
inherent in preserving the exclusivity of usage.
MARIE-FRANOISE MARAIS & THIBAULT LACHACINSKI, LAPPLICATION DES DROITS DE PROPRIT

INTELLECTUELLE 624 (2006).
64
Hlterhoff v. Freiesleben, I-4187 E.C.R. (2002) (Advocate General).
65
Id.
66
MAX PLANCK INSTITUTE OF COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW, WTOINSTITUTIONS AND
DISPUTE SETTLEMENT 570 (Rdiger Wolfrum et al. eds., 2009).
67
NUNO PIRES DE CARVALHO, THE TRIPS REGIME OF TRADEMARKS AND DESIGNS 421 (2d ed. 2011).
63
35
[B]. The Wingardium Trademarks Act (WTA) does not allow for restrictions on use of
trademarks.
[1]. NON-USAGE
SECTIONS HINT AT NECESSITY TO USE, AND HENCE ABILITY TO USE UNLESS
PREVENTED.
73.
Sec. 47 of the WTA mandates recession of registration of trademark in case the same is not
used for a period of five years. The same establishes that the right to use exists in the first place.
Registration isnt compulsory to prevent exclusivity of use. It can hence be interpreted that a
positive right to use is inherent with registration, which if unutilized, would be extinguished.
[2]. WTA DOES NOT HAVE ANY EXPLICIT PROVISION OR SITUATION ALLOWING FOR ABROGATION OF
RIGHT TO USE TRADEMARK.
74.
The ITA (in para materia) guarantees the right of use to trademark holders in a manner
similar to property rights. In the absence of any specific provision enabling derogation of usage
rights, the owner has the right to enjoy, and accordingly exploit his trademark to the fullest.
[3]. THE ACT
AIMS AT PREVENTING TARNISH TO REPUTATION AND GOODWILL OF TRADEMARK
HOLDERS.
75.
In contrast to objects like cigarettes and alcohol where the deleterious effects of usage are
not only common, but commonly known and recognized, solar cells have goodwill and are
considered relatively safe and beneficial in the achievement of energy self-sufficiency. In case of
cigarettes, there is no diminishment or overflow of the effects of restriction of usage. However,
solar cell manufacturers would be disproportionately harmed, for it would affect their market
reputation and create an impression of being producers of harmful objects.
[4]. REQUIREMENTS LEAD TO UNFAIR COMPETITION, IN VIOLATION OF THE ESSENCE OF THE WTA.
76.
Plain packaging blurs the line between the mark and its goods. The same is not a fair
practice expected in trade and commerce, and is prohibited under the ITA 68, which is in para
materia to the WTA.
68
Catterpillar Inc v. Mehtab Ahmed, (2002) 25 PTC 438.
36
[C]. Plain packaging leads to confusion and unfair competition, in violation of provisions
of Art. 16 of TRIPS
[1]. TRADEMARK
OWNERS HAVE A LEGITIMATE RIGHT TO PREVENT CONFUSION IN USE OF
TRADEMARK
77.
A presumption of confusion arises under Art. 16 of the TRIPS in use of identical
trademarks, on identical goods. In the present case, although the trademarks themselves have not
been cancelled or refused registration, but their use in a manner identical is no different than them
being identical in the first place.
[2]. PLAIN
PACKAGING EFFECTIVELY MAKES IMPOSSIBLE VISUAL DIFFERENTIATION BETWEEN
DIFFERENT KINDS OF SOLAR CELLS
78.
Art. 16.1 recognizes a legitimate interest in usage of the owner, which has not been
respected in the measures at hand. Further, the ill-conceived imposition of restrictions is without
any viable basis or rationale. The marking requirements have the possibility of confusing the
ordinary customer, and thus, cause confusion and damage to the goodwill of the plaintiffs business
by diverting customers from C-Si cells to TFs, constituting unfair competition as per common law.
It is not necessary to prove that anyone has actually been deceived or confused to be able to seek
relief.69
[3]. UNFAIR COMPETITION AS PER COMMON LAW.
79.
The restriction of use of trademark, leads to creation of confusion with products of
competitors, in a manner similar to passing off and constitutes unfair competition as per common
law.
69
WORLD INTELLECTUAL PROPERTY ORGANIZATION, THE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS 358
(3d ed. 2012)
37
VII. WINGARDIUM UNJUSTIFIABLY ENCUMBERS THE USE OF TRADEMARKS FOR C-SI CELLS IN
THE COURSE OF TRADE THROUGH SPECIAL REQUIREMENTS
[A]. Plain packaging rules and mandatory health warnings are special requirements
80.
Art. 20 aims at regulating encumbrances, which historically dismantled the economic and
psychological dominance of foreign companies in developing markets. Although undefined under

the TRIPS, the word encumbrance has been interpreted 70 to refer to qualifications and prerequisites to the use of lawfully registered trademarks. The measure is detrimental to the general
capability to distinguish between solar cells bearing different trademarks. 71
[B]. Requirements are unjustifiable
[1]. REQUIREMENTS EFFECTIVELY CONSTITUTE ABSOLUTE RESTRICTION ON USAGE, AND HENCE ARE
INHERENTLY UNJUSTIFIED
[i] Requirements eliminate, and not merely encumber distinctiveness of marks.

81.
The plain packaging requirement eliminates the distinctiveness between different types of
solar panels. As per Art. 20, it is possible to encumber the right to use of a particular trademark
given certain health considerations, but not completely denigrate the legitimate right of trademark
holders to derive benefit from their trademarks. The requirement of transparent packaging and
control in size and type of lettering are not in furtherance of the goal of conveying the supposed
possible ill-effects of C-Si panels. The requirements, prohibit, and not regulate, the use of
trademarks.
[ii] Unique nature of Solar panels, vis--vis cigarettes and other similar products
82.
The unique nature of solar panels is different from cigarettes, where packaging serves to
as a promotional tool to influence the consumers choice amongst identical competing products.
Control of packaging of products like cigarettes is to ensure that the product is not popularized
Panel Report, Indonesia Certain Measures Affecting the Automobile Industry, WT/DS54R (July 02, 1998).
UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENTINTERNATIONAL CENTRE FOR TRADE AND
SUSTAINABLE DEVELOPMENT, RESOURCE BOOK ON TRIPS AND DEVELOPMENT: AN AUTHORITATIVE AN PRACTICAL
GUIDE TO THE TRIPS AGREEMENT 246 (2005).
70
71
38
amongst new adopters. Solar panels though can be of varied types, with their packaging serving
the purpose of defining the characteristics and differences between different types. The derogation
is hence functional, not merely cosmetic. Unlike the Framework Convention on Tobacco Control
which establishes a clear reason and evidence of ill effects of cigarettes, no such treaty or
international recognition exists as regards solar cells.
[2]. INTERPRETATION OF UNJUSTIFIABLE
83.
The plain packaging requirements not only place restrictions, but effectively constitute a
total ban, and are hence unjustifiable. In the absence of any definition, a cautious approach which
facilitates international trade must be taken.
[i] Definition of unjustifiable must be in consonance with WTO principles, TRIPS
provisions and international application.
84.
Any interpretation of justification by a member independently by way of national
legislation, would make the provision ineffective. 72 Hence, it is necessary that the justifiability be
compatible with both TRIPS and general WTO Agreements. 73
[ii] Strict interpretation of original provision in light of exceptions
85.
Justifiability of a requirement cannot be interpreted liberally for the second part of the Art.
20 is an exemption to the definition clause. 74

[iii] Effect of interpretation on international trade is relevant
86.
It is imperative to look at the effect of such requirements to ensure that latent discrimination
based upon considerations not relevant to public health or socio-economic welfare are checked.
The health warning requirement is unjustified for it only effects C-Si Cells, despite them having
cleared all safety and health checks. Further, due to their exclusive production in Leviosa, vis-vis production of TF cells in Redondo, the warnings form a barrier based on country of origin.
UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENTINTERNATIONAL CENTRE FOR TRADE AND
SUSTAINABLE DEVELOPMENT, RESOURCE BOOK ON TRIPS AND DEVELOPMENT: AN AUTHORITATIVE AN PRACTICAL
GUIDE TO THE TRIPS AGREEMENT 347 (2005).
73
D. GERVAIS, THE TRIPS AGREEMENT. DRAFTING HISTORY AND ANALYSIS 182 (2008).
74
Id.
72
39
[3]. PUBLIC HEALTH CANNOT BE USED TO JUSTIFY SPECIAL REQUIREMENTS.

[i] There is no certain, or identified threat to public health
87.
The study released by the government of Wingardium isnt adequate for imposition of
restrictions. This is because the study was only preliminary 75, and hence is both contestable and
doubtful; and there is no other evidence to the deleterious effects of solar panels.
[ii] Standard of public health threat
88.
Two preliminary studies, of which one was under the auspices of the Department of Health,
Wingardium does not prove public threat. The conflicting study by Leviosa, and the absence of
any independent study prevent restrictions from being placed. The standard if reduced, would lead
to a slippery slope where a member state would be able to ban anything under grounds of public
health.
[iii] Absolute Restrictions on use cannot be imposed, even under public policy grounds
89.
Art. 16, Art. 20 and the negotiations under the Doha Round recognizes the right of member
countries to impose restrictions on grounds of public health and safety, in addition to public policy.
The ground of public policy arises at the time of registration of marks, and cannot be used to
derogate use of a valid mark. 76 Further, under exception of public health, restrictions in excess of
that what is necessary (Art. 16.1 read along with Art. 8.1) are not permissible. The same is in excess
of what is allowed under the grounds of public health.
[C]. Plain packaging requirements fall under examples of inherently unjustified actions,
and are hence explicitly illegal.
[1]. EXAMPLES ARE INSTANCES OF UNJUSTIFIED ACTIONS.
90.
The examples given under Art. 20 can either be treated as instances of patently unjustified
requirements, as evidenced by the use of the phrase such as. Alternately, they denote cases in
which presumption of being inherently unjustifiable, with possibility of proving to the otherwise
(reverse onus) exists. Even in the latter scenario, onus would lie on Wingardium to justify action,
75
76
16, Fact on Record.

The Indian Trademarks Act of 1999, 9(2)(a), Acts of Parliament,1992 (India).
40
which it cannot for there is no concrete identified risk to public health, or any proven correlation
between plain packaging requirements and shift in consumer preferences.
[2]. REQUIREMENTS MANDATE USE IN SPECIAL FORM AND ARE DETRIMENTAL TO CAPABILITY TO
DISTINGUISH FROM GOODS OF OTHERS.
91.
The first part of Art. 20, provides examples of unjustifiable encumbrances. The
requirements of side-placement, color and font constitute use in special form and the placement
of the health warnings is detrimental to the capability of the goods being distinguished from those
of others, and is hence in violation of Art. 20.
VIII. THE DSU PANEL IS COMPETENT TO RULE ON THE ISSUES AT HAND
[A]. The Energy Cooperation Agreement does not affect validity of dispute under DSU.
[1]. ARBITRATION AS PER UNCITRALAR ISNT BINDING UPON THE PARTIES.
92.
UNCITRALAR are mutually adopted model laws which govern arbitration of a dispute,
and lay down its treatment under International Law. If under the law of the domicile state 77
(Wingardium), the subject matter is excluded, 78 then the dispute isnt capable of being settled
under UNCITRALAR 79 (for example exclusive competence clauses80). In the present case, the
dispute settlement mechanism is the final and exclusive arbiter for all disputes concerning WTO
agreements [4], and is hence exempted. 81
[2]. THERE EXISTS NO OBLIGATION ON WTO TO REFER CASE FOR ARBITRATION
93.
Article 8.1 of UNCITRALAR is not applicable to the panel, it not being a signatory to the
UNCREFAA. Notwithstanding, a court must refer every agreement subscribing to UNCITRALAR

to adjudication, unless it finds that the agreement is null and void, inoperative or incapable of being
77
Westbrook International L.L.C. v. Westbrook Technologies Inc. 17 F. Supp. 2d 681 (1998).

Art. 1(5), UNCITRALs Model Law on International Commercial Arbitration.
79
HENRI C. ALVAREZ, ET AL., MODEL LAW DECISIONS: CASES APPLYING UNCITRAL MODEL LAW
INTERNATIONAL COMMERCIAL ARBITRATION 207 (2001).
80
Desputeaux v. Editions Chouette (1987) Inc., 1 S.C.R. 178 (2003).
81
Id.
78
ON
41
performed. The decision of the arbitration would be incapable of being performed, for it would be
in violation of domestic public policy of Wingardium, and hence there is no obligation to refer the
parties to arbitration.
[3]. FURTHER, THE WTO DSU HAS JURISDICTION AS PER UNCITRAL.
94.
The ECA references the mutual respect the parties must have for each others goals, and
fostering of trade and development. The same is reflective of the rights and obligations under the
TRIPS, and various other agreements under the WTO. This creates an option for Leviosa to sue
either under the WTOs dispute settlement mechanisms or approach the WIETAC for arbitration. 82
There is no lack of opportunity for Wingardium to present their case, and there is no reason to
believe that they would be treated unequally under WTO.83
95.
In case of lacunae or penumbra of doubt concerning applicability of UNCITRAL, then
questions are to be settled in conformity with the general principles on which the model laws were
framed, which as per the adopting resolution aimed at a unified legal framework for the fair and
efficient settlement of disputes arising in international commercial relations, which is fulfilled by
the WTO DSU. Hence, there can be no challenge.
[4]. ARBITRATION UNDER UNCITRAL IS NOT IMPLEMENTABLE AND USELESS
96.
The prerequisite of exhausting all local remedies is incapable of being performed, for the
issue at hand involves testing otherwise valid domestic legislation vis--vis international
agreements. Further, Art. 36(b)(ii) of UNCITRAL allows refusal of recognition of award when the
recognition or enforcement of the award would be contrary to the public policy of this State. In the
present case the actions of Wingardium are accepted as being in line with domestic public policy.
The challenge is the permissibility keeping in light international obligations of Wingardium.
[B]. Wingardium has waived its right of arbitrating the dispute.
97.
Firstly, the failure of Leviosa to object to the request for establishment of the DSU panel
constitutes waiver of right of arbitration. Secondly, WTO doesnt recognize UNCITRAL;

82
Corporacion Transnacional de Inversiones, S.A. de C.V., et al. v. STET International, S.p.A. and STET International
Netherlands, N.V. 45 O.R. (3d) 183 (1999).
83
Id.
42
nonetheless, as per UNCITRAL, parties must make timely and expedited application for a stay. 84
A request for arbitration must be a specific application made prior to the filing of a statement of
defense or other step.85 Parties should bring alleged procedural deficiencies to the attention of the
panel at the earliest possible opportunity, which was the opportunity for Wingardium to move a
separate preliminary application contesting jurisdiction, and highlighting alleged procedural
infirmities.86 The objection cant raise in the statement of defense like at present.87
[C]. Notwithstanding legality, the dispute under WTO need not be suspended.
98.
The present proceedings under WTO need not be discontinued or suspended as per
UNCITRAL, because the arbitral tribunal can terminate the proceedings if continuation of the
proceedings has become unnecessary, like in the present case [A][4]. In DSU proceedings, it is
necessary that the parties first try to amicably settle the dispute amongst themselves (Art. 6.2)
Hence no procedural infirmity exists as per DSU.88
84
BWV Investments Ltd. v. Saskerferco Products Inc., 119 D.L.R. (4 th) 577 (1994).
A.B.N. Amro Bank Canada v. Krupp MaK Maschinenbau GmBH, 135 D.L.R. (4 th) 130 (1996).
86
Request for the Establishment of a Panel by Germany, United StatesCountervailing Duties on Certain CorrosionResistant Carbon Steel Flat Products from Germany, 123, WT/DS213/AB/R (Nov. 28, 2002).
87
Nutrasweet Kelco Co. v. Royal Sweet International Technologies Ltd. Partnership, 49 B.C.L.R. (3d) 115 (1998).
88
Id.
85
43
REQUEST FOR FINDINGS
Wherefore in light of the Issues Raised, Arguments Advanced and Authorities relied on, the
complainant requests this Panel to find that:
a. WG/SM/P-1
Violates Art. 2.1, TRIMS as it is a trade related investment measure.
Violates Art. III:4 as it is a regulation which treats like imported products less
favourably.
Violates Art. III:5 as it mandates the use of a specified proportion of domestic

materials in the product, and is therefore against the principles of Art. III:1.
Violates Art. 3.1(b) and 3.2 of the SCM Agreement because it appears a subsidy in
the form of financial contribution or income or price support and ensuing benefit is
to be provided contingent upon the use of domestic over imported goods
Article IX:4 of the GATT 1994, because Wingardium imposes requirements

relating to the marking of imported Crystalline Silicon Cells which materially
reduce their value and/or unreasonably increase their cost of production.
b. WG/SMEO/118 is violative of
Article 20 of the TRIPS Agreement, because Wingardium unjustifiably encumbers

the use of trademarks for Crystalline Silicon Cells in the course of trade through
special requirements.
Article 16.1 of the TRIPS Agreement, because Wingardium prevents owners of

registered trademarks from enjoying the rights conferred by a trademark under the
Wingardian Trademark Act.
Article 2.2 of the TBT Agreement, because Wingardium imposes technical

regulations that create unnecessary obstacles to trade and are more trade-restrictive
than necessary to fulfil a legitimate objective taking into account the risks that nonfulfilment would create.
All of which is respectfully affirmed and submitted,
Counsel for the Complainant,
134C.
44

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TEAM CODE: 134

BEFORE THE PANEL ESTABLISHED BY WTO/DSB

WRITTEN SUBMISSION ON BEHALF OF THE COMPLAINANT

8TH GNLU INTERNATIONAL MOOT COURT COMPETITION

LIST OF ABBREVIATIONS .................................................................................................................. 4

[A]. It is a technical regulation. ............................................................................................ 27

Consortium of Leviosan Investors

Department of Health, Wingardium

Dispute Settlement Board

Dispute Settlement Mechanism

Dispute Settlement Understanding

Energy Cooperation Agreement

Framework Convention on Tobacco Control

General Agreement on Tariffs and Trade

Indian Trademarks Act

Local Content Requirements

New York Convention/NYC

United Nations Conventions on the Recognition and

Power Authority of Wingardium

Public International Law

Agreement on Subsidies and Countervailing

Agreement on Technical Barriers to Trade

Agreement on Trade Related Invested Measures

Agreement on Trade Related Aspects of International

United Nations Commission on International Trade

United Nations Commission on International Trade

United Nations Conventions on the Recognition and

Vienna Convention on the Law of Treaties

Wingardium Ministry of Renewable Energy

Wingardium National Solar Mission

Wingardium Trademarks Act

World Trade Organization

WTO Appellate Body Reports

WTO Panel Reports

7. Panel Report, Indonesia Certain Measures Affecting the Automobile Industry,

PRACTICE AND THE LAW (2011).

ANALYSIS (2d ed.

INTERNATIONAL LAW (2006).

13. K.C. KAILASAM & RAMU VEDARAMAN, LAW

TRADE MARKS & GEOGRAPHICAL

INDICATIONS (2d ed. 2005).

DEVELOPMENT: AN AUTHORITATIVE AND PRACTICAL GUIDE TO THE TRIPS AGREEMENT

2. J.K Jackson, International Product Positioning, 16(3) JOURNAL OF INTERNATIONAL

Agreements and Conventions

Article 2.1 of the TRIMS Agreement, because they appear to be trade-related

Article 20 of the TRIPS Agreement, because Wingardium unjustifiably encumbers the

Article 16.1 of the TRIPS Agreement, because Wingardium prevents owners of

I. WG/SM/P-1 VIOLATES ART.III OF GATT & ART. 2.1, TRIMS.

II. WG/SM/P-1 VIOLATES ART. IX,GATT

IV. DIR. 141/PP/CST VIOLATES TBT

There exists a positive right to use a trademark

Plain packaging rules are special requirements

VIII. THE DSU PANEL IS COMPETENT TO RULE ON THE ISSUES AT HAND

consideration2 of certain criteria. 3 These are:

internal sale or offering for sale of products.[ii].

Annex. II, Fact on Record.

[3]. IT ACCORDS LESS FAVORABLE TREATMENT TO IMPORTED PRODUCTS

Further in according products de jure equality, it leads to de facto discrimination against

A regulation will be said to be in violation of Art. III:5 first sentence, if it is a quantitative

of discouraging imported products vis--vis domestically produced products, or avoids protection

imported or exported,16 while regulation means actions or procedures implemented by

regulation is a rule or procedure implemented by a government which requires a certain proportion

A quantitative regulation is against the principles of Art. III:1, if it discourages imported

purposes and for commercial resale.