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Charnovitz
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The panel's decision on benefit is troubling, and I wish the complainants had done a better job of pleading this prong. I don't know if the dissent is right in its but-for analysis, but the panel failed in not engaging the dissent and explaining why it was wrong. If the normal practice of governments is to give solar/wind energy providers very generous terms for political reasons, then perhaps such terms are always a benefit. I would also have been interested in an explanation by the panel of how participation in the contract confers an advantage (para. 7165) and yet that same contract does not obviously confer a benefit. To argue the existence of private benefit, the complaining countries could have looked beyond price in considering remuneration/benefit. A FIT contract that does not have a degressive tariff could confer a benefit if the normal practice is for degressivity. A government contract that does not require bidding could ipso facto also confer a benefit.
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I agree with Simon that Antigua ought to pursue SCOO that lowers IP protection down to a best practice, such as 28 years of copyright protection. But it might be too idealistic to expect Antigua to do so given the self-servicing and embarrassing comments made by USTR at the DSB recently accusing Antigua of piracy. The Nevada and New Jersey actions on gambling show, once again, how narrow-minded the arbitrators were in withholding the billions of dollars in SCOO that Antigua deserved. There is no justifiable moral reason to allow horseracing remote gambling while forbidding other remote gambling. The gradual move of USG to allow internet gambling shows, once again, that the case against Antigua was only about US protectionism.
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This ia a good example of US government stupidity. First, in having a Buy American provision in the first place. And second for ripping out pipe in a government health center for no reason other than to vindicate protectionism. Perhaps if the Obama Administration did not waste so much taxpayers dollars, there would be more resources to pay for Medicare to cover medical procedures like virtual colonoscopies that would save lives. Instead, the Obama Administration has refused to pay for such diagnostic tests for the elderly.
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I think Mexico has to at least explain why they have not retaliated in transportation services. If they don't explain why that was impractical or ineffective, then one might wonder whether the retaliation is NAFTA-legal. If the retaliation is not NAFTA-legal, and is directed only against the US, then it seems to me to be a WTO violation. (If the retaliation is NAFTA-legal, then presumably it would not be challengeable in the WTO because it would be based on an inter se agreement. Unlike in soft drinks, a panel would not be able to dodge that if the United States were to challenge Mexico's retaliation in the WTO.)
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