Energy Subsidies under the WTO

Hopes of a Level Playing Field for Fossil Fuels and Renewable Energy

‪By Francis T. Dwyer

Francis Dwyer is a 2014 graduate of Albany Law School where he was an associate editor on Albany Law Review and a member of the Environmental Law Society. He received his undergraduate degree from the University at Albany where he studied Sociology and Criminal Justice.

He is currently an Excelsior Service Fellow at New York State Department of Public Service, in the Office of General Counsel.

This paper was prepared for Professor Halewood’s International Trade Law seminar.

Government subsidies in the energy sector affect both international trade and the environment. Currently, there is a trend that promotes subsidizing fossil fuels and stifles subsidies on renewable energy sources. From an environmentalist’s point of view, this is the opposite of what subsidy regulation should be. The World Trade Organization (WTO) should regulate subsidies in a way that discourages the consumption of fossil fuel and encourages the development of renewable energy sources.

This paper first lays out subsidy regulation under the WTO generally and takes a look at how disputes are settled. It then discusses the issues surrounding subsidies on fossil fuels and renewable energy sources, respectively. Finally, it addresses what can be done to solve these problems regarding energy subsidies in order to promote WTO rules that address environmental concerns.

This paper argues that through the use of a multilateral agreement, the WTO can and should administer rules that have ultimate authority to regulate energy as it relates to international trade. Such an “Agreement on Energy” could address energy and international trade in a similar fashion as the Agreement on Agriculture addresses trade issues surrounding agriculture.

The WTO has noted the importance of environmental issues, now it needs to do something. An agreement on energy subsidies is a great place to start. Clear rules could still protect the policy interests surrounding fossil fuel subsidies while promoting renewable energy subsidies. The goal is to create an equal playing field to subsidize both energy sources.

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To read the paper, open HERE.

Cuba, the United States, and the World Trade Organization

Relic of the Cold War in a New Age of Trade

By Peter M. Stecker
Peter Stecker, a third-year law student at Albany Law School, did his undergraduate work at Fordham University where majored in History and spent a summer studying at Heythrop College in London. While in law school, he worked for a year as an intern in the Low-Income Taxpayer Clinic,  and he has held several positions with state and local governmental entities, including his current clerkship with Judge Rachel Kretser of the City of Albany Criminal Court. This past winter, he competed in the Jessup International Moot Court Competition in New York City.
This paper, prepared for Professor Harrington’s Fall 2012 International Organizations class, was a journey of self-discovery for Peter. He is half-Cuban, and a descendant of the Menendez family who founded the world-renowned Montecristo cigar brand.

The following is a story of revolution, retribution, and rum.

The World Trade Organization’s (“WTO”) General Council meeting on July 25, 2012 was relatively unremarkable.  Like so many other WTO meetings the topics of discussion were activities of States that required WTO action, progress reports on organizational initiatives, and other assorted proposed internal policy changes.

After the planned portion of the WTO’s July 25th gathering, however, the unremarkable turned fascinating in the “other business” phase of the meeting.  At this point, a representative from the Cuban government addressed the General Council and reiterated that the United States (“U.S.”) was still not in compliance with a Dispute Settlement Body (“DSB”) order from 2002 to change a 1998 U.S. law designed to prevent trademark protection for items seized by the Cuban government after the Communist Revolution of the late 1950s.

After shortly recapping this situation, the Cuban representative posed a complex question to the General Council: “what guarantee of industrial property rights does the [U.S.] offer in their territory to the Members of this Organization and, in particular, to Cuba?”

This paper focuses on the history of the Cuba-U.S. trademark dispute, how it has been handled by the WTO, and its current status.  Also, this paper addresses the issue of the WTO’s lack of power, the questionable validity of Cold War legislation, and the nebulous treatment of international intellectual property protection.

Finally, this paper examines the impact that this dispute will have on the most potent of all Cold War relics, the U.S.-Cuba trade embargo.

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To read the paper, open HERE.

Impermissible Subsidization of State-Owned Enterprises (SOE's)

Alternative Methods of Assessing in the WTO Dispute Settlement Body

By John R. Forbush

John Forbush, a third year student at Albany Law School, is a senior editor on the Albany Law Review. He is a graduate of Union College and Carnegie Mellon's Heinz School.

He prepared this paper for Professor James Gathii's course, International Business Transactions, Fall 2011.

A March 2011 World Trade Organization (WTO) Appellate Body decision, overturning the United States’ issuance of countervailing duties on specific Chinese imports, established that a mere showing of a firm’s majority “state-owned” status is not, on its own, sufficient to justify the imposition of countervailing measures. The prominence of state-owned enterprises (SOEs) in the Chinese economy presents challenges to established methods for deciphering, calculating, and punishing foreign subsidization of U.S.-bound imports.

Although the decision wisely accommodates the existence of state-owned enterprises, this evidentiary standard is devoid of guidance in terms of delineating when state ownership and support of firms “crosses the line” and becomes “actionable” by way of countervailing measures. For countries seeking to impose countervailing measures on SOE imports, the lack of transparency that characterizes many SOEs poses significant challenges in assessing when an SOE is being impermissibly subsidized and used as an instrumentality of the state.

This paper examines how application of alternative legal standards might produce different and, ideally, more satisfactory results for the United States in efforts to defend the future imposition of countervailing measures against subsidized state-owned enterprises.
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To read the entire paper, open HERE.