IEL

1. Since the Project is owned by a private company, PECO, can its actions be attributed
to Runbeti?
A State can be responsible for the effects of the conduct of private parties, if it failed to take
necessary measures to prevent those effects. Article 8 of the ARSIWA states that if the
person or group of persons is in fact acting on the instructions of, or under the direction or
control of, that State in carrying out the conduct. Runbeti subsidised PECO’s Project and
conducted EIA based on which, it approved and issued necessary permits for the construction
of the first phase of the Project.
2. Although, wind farms may cause impact but CBD and EUROBATS COP recommend
mitigation of climate change and other precautionary measures for protecting the
environment. What other measures could Runbeti have taken for the Project while
keeping in mind the protection of bats?
3. Even if there are some negative impacts on bats, is there any conclusive evidence that
the deaths were due to the operation of the wind farm?
Evidence before the court-conclusive evidence (beyond reasonable doubt) and preponderance
of probability. Preponderance of probability is relevant when arguing about the deaths of bats
since there is no conclusive evidence in the present matter.
4. What measures are justified when a species is protected under any appendix like
appendix II of CMS in the present case? What measures could the parties take under
the Appendix?
5. If EIA was conducted and project was introduced in a phased manner, isn’t it enough?
6. Are you submitting there is absolute restrictions under EUROBATS while siting such
projects?
7. What are the cases where such wind farms were asked to be shut down?
8. What would you say about deaths caused by wind farms in other countries which are
higher?
Trade
9. What is the relevance of Dominican-Cigarettes case? (article IX argument)
10. Isn’t likeliness of products determined through end uses and other factors such as how
are they sold in the country and not only the production methods?
11. Cannot the increase in demand of tapagium in Alducra imply that consumers do not
specifically want bat safe produced or non-bat safe produced products?
 12. Isn’t there de facto discrimination? Since Alducra’s farmers are already following the
bat safe practice and Runbeti’s farmers will now have to comply?
No. There are no incentives for Alducra’s farmers for producing sustainably. If Runbeti’s
unsustainable products were to be equated with Alducra, only then a discrimination would
occur.

13. Wouldn’t putting labels on a products create a bias? Wouldn’t people want to only
buy bat safe products? Wouldn’t that amount to quantitative restriction? Wouldn’t
there be LFT also?
First, burden upon Respondent to establish LFT.
Second, different treatment does not mean a measure is accorded least favourable treatment.
Third, absent of detrimental effects.
Fourth, Single regulatory regime. Therefore, an additional requirement would not render it
according LFT.
Firth, even if LFT, then not related to origin.

Therefore, even if two “like” products are formally treated differently, that does not mean
that a measure is inconsistent with Article III:4. 1 A complaining Member carries relatively
higher burden to establish that the measure accords to the group of “like” imported products
“less favourable treatment” than it accords to the group of “like” domestic products. 2

Further, even if they are less favourably treated, the Court should inquire further whether ‘the
detrimental effect is unrelated to the foreign origin of the product’. 3 As long as the
detrimental effect is explained by factors or circumstances unrelated to the foreign origin of
the product, the treatment accorded is not less favourable. 4 [W]here a Member's legal system
applies a single regulatory regime to both imported and like domestic products, the mere
existence of an additional requirement on imported products does not imply that imported
products are accorded ‘less favourable treatment’

14. What is the difference between quantitative restriction and according LFT?
Both have effects. One concerns border and other concerns internal.
1
Appellate Body Report, Korea – Various Measures on Beef (2001), ¶136.
2
Appellate Body Report, EC – Asbestos (2001), ¶ 100; Japan—Film (Panel), ¶¶6.79–6.81.
3
United States’ appellant's submission in US – Clove Cigarettes (2012), ¶101, citing Appellate Body Report,
US-Clove Cigarettes (2012), footnote 372 to ¶17. Panel Report, EC–Approval and Marketing of Biotech
Products (2006), ¶ 7.2514.
4
Dominican Republic—Cigarettes (Appellate Body), ¶96.
 15. Wouldn’t necessity test include looking at alternative measures such as monitoring
bat mortalities to protect bats? Weren’t there other measures available?
16. Why QR is not violated?

First, the burden is on Respondent to show some trade effect of the alleged de facto
restriction of the measure creating a disincentive to import 5 or provide a ‘causal link’6 or a
‘persuasive explanation of precisely how the measure at issue causes or contributes to the low
level of exports’.7

Second, Only those measures which has a ‘limiting condition or regulation’ on the
importation and ‘affects the opportunities for importation itself’ is subject to Article XI:1, and
not every condition or burden placed on importation that affects the opportunities for entering
the market.8

Third, Internal regulations that does not prevent the importation of goods as such is consistent
with Article XI:1.9

Fourth, Article XI:1 does not impose an obligation to exclude any possibility that
governmental measures may enable private parties, directly or indirectly, to restrict trade,
where those measures themselves are not trade-restrictive.10

The measure constituting eco-labelling and indirect taxation does not restrict or limit the
quantity of tapagium being imported. Nor does it restrict the right to sell tapagium
conditional upon the farming methods. Tapagium can be freely sold after the application of
appropriate labels and the tax is ultimately borne by the consumers. 11 Any advantage
resulting from these measures depends on the consumers’ preference to “Bat Safe” products.

5
Panel Report, India-Measures Affecting the Automotive Sector, ¶7.269, WT/DS146/R/WT/DS175/R (Apr. 5,
2002).
6
Appellate Body Report, European Communities-Measures Affecting the Importation of Certain Poultry
Products, ¶¶126-127, WT/DS69/AB/R (Jul. 23 1999).
7
Panel Report, Argentina-Measures Affecting the Export of Bovine Hides and Import of Finished Leather,
¶11.21, WT/DS155/R (Feb. 16, 2001).
8
Panel Report, Dominican Republic-Measures Affecting the Importation and Internal Sale of Cigarettes,
¶7.261, WT/DS302/R (May 19, 2005); Argentina-Import Measures Appellate, ¶5.217, citing China-Raw
Materials Appellate, ¶319-320; EU-Energy Panel, ¶7.974-7.975.
9
Canada-FIRA Panel, ¶5.14.
10
Panel Report, Argentina-Measures Affecting the Export of Bovine Hides and Import of Finished Leather,
¶11.19, WT/DS155/R (Feb. 16, 2001).
11
Record, ¶26.