Re-Assessing Mineral Export Restraints as Industrial Policy Instruments: What Role, if Any, for the WTO Subsidy Law?

Abstract

This article takes stock of the legacy of some new generation WTO disputes relating to trade and environment, specifically with a view to explore whether and, if so, to what extent export restrictions could be effectively dealt with under the WTO Agreement on Subsidies and Countervailing Measures (ASCM) when used as industrial policy measures. The article discusses the cases where such restrictions subsidise industries that utilise raw materials of mineral origin and operate in the renewable energy sector. After discussing the shortcomings of WTO disciplines on export restrictions (which emerged after the China – Raw Materials and China – Rare Earths cases), the article reviews economic and legal arguments in favour of treating export restrictions, more generally, and mineral export restraints, more specifically, under the ASCM. It argues that at least under certain conditions the ASCM may be better placed from a regulatory point of view to govern trade instruments of an industrial nature that de facto operate as subsidies, such as export restrictions, especially in light of the inconsistencies of current WTO rules on export duties. It discusses whether the approach espoused by the Appellate Body in Canada – Renewable Energy may grant any flexibility to “green” industrial policy instruments and questions whether mineral export restraints may directly benefit from the partial carve-out built in by the WTO adjudicators.