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Abstract

In the EU – CVDs on Biodiesel (Indonesia) WTO dispute, the legal relevance of certain export levy payments made by producers that ultimately benefited from the alleged subsidy, in the form of grants from the government, was contested.  These export levies were mandated under the same measure that introduced the grants, were paid by the producers who ultimately received the grants and made up the funds from which the grants were ultimately financed. The WTO panel attached no particular importance to these export levy payments in its subsidy analysis and ultimately found that the grants constitute a subsidy. We disagree and submit that the export levy payments made by the producers should have informed the panel’s subsidy assessment.  At the very least, we consider that the panel should have offset or adjusted the benefit that the producers received through the grant disbursements. Not only were both the export levies and the grant disbursements conceived by the same measure, which we already consider to be a compelling argument, but furthermore, there were various other features that were intrinsic to the design of this measure that further strengthened the case for taking into account the origin of the export levy payments when deciding whether a “subsidy” had indeed been bestowed. We also consider that relevant context provided by the WTO SCM (Subsidies and Countervailing Measures) Agreement and the Agreement on Agriculture further validates this proposition.

Digital Object Identifier (DOI)

doi.org/10.55496/KSWQ2659

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