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Canada – Certain Measures Affecting the Renewable Energy Sector (Canada FIT), appears to be the first-ever case at the World Trade Organization (WTO) to address the tenuous ‘trade versus climate’ debate in the context of renewable energy policies. Feed-in Tariffs (FIT) for renewable energy, which have emerged as a popular domestic policy tool to address climate change, share an extremely controversial relationship with the international trade regime, especially with the legality of such support schemes increasingly coming under the WTO scanner. In this article, the authors focus on four aspects that emerge from the decisions made by the WTO’s Panel and Appellate Body in this case, namely the clarification of the blurred legal status of renewable energy support schemes under WTO law; a new ‘public goods’ exception; an evolving, “activist” WTO jurisprudence; and the imminent end of domestic content requirements in renewable energy policies. The authors argue in this article that the WTO Panel and Appellate Body’s decisions represent a development of the law, one that is aimed at settling the ever-so-contentious clash between the WTO law on subsidies and climate change support schemes.

The implementation of the sustainable development principle of integration implies that economic laws should not be designed solely for the purpose of maximizing financial profits, but also with the object of improving human well-being, and addressing social and environmental concerns. International organizations, in which international treaties are being negotiated and created, will have to support this type of cross-disciplinary approach. International institutions, however, were not originally designed to cope with such a cross-disciplinary effort. Rather, most international institutions have emerged in line with the premise of ‘functionalism’, according to which their role is limited to supplying specialized services, usually as a solution for emerging needs and as a result of historical events. These specialized institutions have thus emerged with little coordination or common planning and have resulted in a global structure that has been referred to as an ‘accident of history’. The role that international organizations should and do fulfill with respect to the implementation of the principle of integration is reviewed in this paper. This paper concentrates on trade and investment organizations (the World Trade Organization and the Energy Charter Treaty); it reviews the channels through which non-trade/investment considerations may, or may not, penetrate the decision-making processes of these organizations; the ways these International organizations engage with interdisciplinary issues and how the objectives of other institutions are reflected in their work

International law scholars frequently seek to participate in international legal proceedings as amici curiae. Often they do so by ‘piggy-backing’ onto the submissions of NGOs and other advocacy groups. Occasionally – but increasingly in recent years – they do so in their own names, purporting to offer ‘pure’ academic expertise, and generating certain expectations of scholarly neutrality. This article focuses on the latter trend, which the authors argue has the potential to re-shape the scholar-adjudicator dialogue in interesting ways. Under the traditional approach towards ‘teachings’, the decision of whether, how and with whom to engage is firmly in the hands of the adjudicators. The proliferation of academic amicus briefs threatens to disrupt this arrangement. It also brings certain benefits: the briefs are often more ‘on point’ than doctrinal writings, while openness to unsolicited academic submissions encourages plurality and reduces reliance on reputation as a measure of scholarly quality. Our survey of the emerging practice across various international courts and tribunals indicates that adjudicators tend to be reticent when it comes to the reception of unsolicited academic amicus briefs, however, we identify several instances of productive engagement. This leads us to conclude that it would be unduly gloomy to characterize the emerging practice as a ‘dialogue of the deaf’. A fairer assessment would be that the academic amicus trend is bringing about a modest adjustment in the way that international law scholars and adjudicators engage with each other.

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