Renewable Energy and Trade: Interpreting Against Fragmentation

"Renewable Energy and Trade: Interpreting Against Fragmentation" (2013) 51 Canadian Yearbook of International Law 217-58.

Windsor Law Faculty Author:  Maureen Irish

Abstract:

Several disputes relating to renewable energy are underway at the WTO. The Appellate Body has released its first decision in the area, on the feed-in tariff for electricity in the Canadian province of Ontario. The disputes raise once again the issue of the relationship between international trade law and environmental protection. This article outlines and analyzes potential problems in trade law over discriminatory treatment, border adjustments and subsidies. Evolving WTO jurisprudence will be able to resolve many of the difficulties, although the crucial question of the treatment of production and processing methods remains obscure after the Canada - Feed-in Tariff decision.  Questions of fundamental theory lie close to the surface of these debates. The recent expansion in the number of international regimes and tribunals highlights the importance of approaches to interpretation in public international law. As countries negotiate new treaties to address the needs of global society, potential conflicts and overlapping provisions are likely to appear. Differences of opinion about the use of external treaties in the WTO dispute settlement system illustrate problems that can be anticipated in several fora. To achieve workable solutions for renewable energy disputes and many others, interpretation should promote the harmonious integration of obligations, in accordance with the intent of negotiators.