Abstract
On the occasion of the 20th anniversary of the WTO and its dispute settlement mechanism, the authors consider it opportune to examine some of these initial disputes involving India with the benefit of hindsight. In this chapter we assess the extent to which these disputes have had an impact on India’s process of internal reform, on India continuing to open up its import markets and gain greater market access abroad, as well as on the positions adopted by India in more recent WTO disputes and negotiations.
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Notes
- 1.
WTO Press Release (1998) India Should Keep Up With Its Trade Reforms To Ensure Strong Economic Growth, PRESS/TPRB/71.
- 2.
WTO International Trade Statistics (2014), table I.7, https://www.wto.org/english/res_e/statis_e/its2014_e/its14_world_trade_dev_e.pdf Accessed on 31 Dec 2015.
- 3.
Ibid.
- 4.
PRESS/TPRB/71, supra note 2.
- 5.
WTO International Trade Statistics (2014), at table I.10.
- 6.
Information compiled from the WTO website.
- 7.
Panel Report on United States—Measures Affecting Imports of Woven Woolen Shirts and Blouses from India, WT/DS33/R (Hereinafter US—Wool Shirts and Blouses) at paragraph 7.12.
- 8.
Ibid, at paragraph 7.12.
- 9.
Appellate Body Report on United States—Measures Affecting Imports of Woven Woolen Shirts and Blouses from India, WT/DS33/AB/R (Hereinafter US—Wool Shirts and Blouses) at paragraph 13.
- 10.
Ibid, at paragraph 16.
- 11.
Panel Report on United States—Anti-Dumping Measure on Shrimp from Ecuador, WT/DS335/R (Hereinafter US—Shrimp (Ecuador)), at paragraphs 7.9 and 7.11; Panel Report on United States—Measures Relating to Shrimp from Thailand, WT/DS343/R (Hereinafter US—Shrimp (Thailand)) at paragraph 7.21; Panel Report on Argentina—Measures Affecting Imports of Footwear, Textiles, Apparel and other Items, WT/DS56/R (Hereinafter Argentina—Textiles and Apparel) paragraphs 6.34–6.40; Appellate Body Report on European Communities—Measures Concerning Meat and Meat Products (Hormones) WT/DS26/AB/R; WT/DS48/AB/R (Hereinafter EC—Hormones), at paragraph 98 (The AB considered the rule laid down in US—Wool Shirts and Blouses to “embod[y] a rule applicable in any adversarial proceedings”); Appellate Body Report on Japan—Measures Affecting the Importation of Apples, WT/DS245/AB/R (Hereinafter Japan—Apples), at paragraph 157.
- 12.
Panel Report on Turkey—Restrictions on Imports of Clothing and Textile Products, WT/DS34/R (Hereinafter Turkey—Textiles), at paragraphs 6.18, 9.57, 9.58, 10.1.
- 13.
Panel Report on India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R (Hereinafter India—Quantitative Restrictions (US)), at paragraph 3.140.
- 14.
Ibid, at paragraph 3.140.
- 15.
Ibid, at paragraph 5.119.
- 16.
Appellate Body Report on India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R (Hereinafter India—Quantitative Restrictions (US)), at paragraph 145.
- 17.
Panel Report on India—Measures Affecting the Automotive Sector, WT/DS146R; WT/DS175/R (Hereinafter India—Autos), at paragraphs 7.282–7.285.
- 18.
Appellate Body Report on European Communities—Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India (Article 21.5) WT/DS141/AB/RW (Hereinafter EC–Bed Linen (Article 21.5)), at paragraphs 174–177.
- 19.
Panel Report on European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/R (Hereinafter EC—Tariff Preferences), at paragraph 7.53; Appellate Body Report on European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/R (Hereinafter EC—Tariff Preferences), at paragraphs 90, 104–105.
- 20.
Panel Report on India—Additional and Extra-Additional Duties on Imports from the United States, WT/DS360/R (Hereinafter India—Additional Duties), at paragraphs 7.161, 8.1; Appellate Body Report on India—Additional and Extra-Additional Duties on Imports from the United States, WT/DS360/AB/R, at paragraphs 183–195.
- 21.
Appellate Body Report on India—Measures Concerning the Importation of Certain Agricultural Products, WT/DS430/AB/R (Hereinafter India—Agricultural Products), at paragraph 5.280.
- 22.
Appellate Body Report on India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R (Hereinafter India—Patents), at paragraph 29.
- 23.
Ibid, at paragraph 1.
- 24.
Panel Report on India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, at paragraphs 7.36–7.37.
- 25.
German Interests in Polish Upper Silesia (Germany v. Poland), 1925 PCIJ (ser. A) No. 6 (25 Aug. 1925).
- 26.
Appellate Body Report on India—Patents, at paragraph 65.
- 27.
Ibid, at paragraph 71.
- 28.
Panel Report on India—Patents, at paragraph 7.18.
- 29.
Appellate Body Report on India—Patents, at paragraph 42.
- 30.
Ibid, at paragraph 58.
- 31.
Patent (Amendment) Act 1999.
- 32.
Patent (Amendment) Act 2002; Patent (Amendment) Act, 2005.
- 33.
Patent Act 1970, Section 3(d).
- 34.
Appellate Body Report on European Communities—Selected Customs Matters, WT/DS315/AB/R (Hereinafter EC—Selected Customs Matters) at paragraph 133; Appellate Body Report on United States—Subsidies on Upland Cotton, WT/DS267/AB/R (Hereinafter US—Upland Cotton), at paragraph 263; Appellate Body Report on Australia—Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R (Hereinafter Australia—Apples), at paragraphs 423–425.
- 35.
Panel Report on United States—Measures Concerning the Importation, Marketing, Sale of Tuna and Tuna Products, WT/DS381/R (Hereinafter US—Tuna II (Mexico)), at paragraph 7.20.
- 36.
See, Article 4, International Law Commission, Articles on State Responsibility.
- 37.
WTO (2001) Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2.
- 38.
Patents Act, 1970, Section 3(d).
- 39.
See WTO (2015) Minutes of the Meeting of the Council for Trade-Related Intellectual Property Rights, IP/C/M/79/Add.1.
- 40.
Appellate Body Report on India—Patents, at paragraph 42.
- 41.
Appellate Body Report on United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Hereinafter US—Shrimp), at paragraph 119.
- 42.
Ibid, at paragraph 128.
- 43.
Ibid, at paragraphs 156–186.
- 44.
Ibid, at paragraph 187.
- 45.
Panel Report, India—Quantitative Restrictions, at paragraph 2.3.
- 46.
WTO (1999) India—Quantitative Restrictions: Status Report Filed by India, WT/DS90/16/Add.7.
- 47.
The second author of this piece fondly recalls the smuggler characters like “Sagar alias Jackie” and “Vicent Gomas” played by actor Mohanlal, and the high-handed and corrupt officials they were shown to be battling against, in popular Malayalam movies of the 1980s and 1990s. The popularity of the ‘smuggler’ movies of the time may be an indicator of how well acquainted the public was, of smuggling and corruption that accompanied the strict import controls.
- 48.
Customs Act 1962, Section 11.
- 49.
Department of Commerce, Notification No. 87 (RE-2013)/2009–2014, July 3, 2014; Gazette of India, Extra-ordinary, October 13, 2014, G.S.R. 718 (E).
- 50.
Appellate Body Report on India—Patents, at paragraph 65.
- 51.
Panel Report on United States—Sections 301–310 of the Trade Act 1974, WT/DS152/R at paragraphs 5.206–5.228.
- 52.
Ibid, at paragraphs 7.18–7.20.
- 53.
Ibid, at paragraph 7.122.
- 54.
Panel Report on India—Autos, at footnote 133.
- 55.
Panel Report on United States—Anti-Dumping and Countervailing Measures on Steel Plates from India, WT/DS206/R (Hereinafter US—Steel Plate), at paragraph 8.1.
- 56.
Ibid, at paragraph 7.55.
- 57.
Ibid, at paragraph 7.14.
- 58.
Ibid, at paragraph 7.15.
- 59.
Ibid, at paragraph 7.16.
- 60.
Ibid, at paragraph 7.22.
- 61.
Panel Report on European Communities—Anti-Dumping Measure on Farmed Salmon From Norway, WT/DS337/R (Hereinafter EC—Salmon (Norway)), at paragraph 7.347; Appellate Body Report on United States—Anti-Dumping Measure on Certain Hot-Rolled Steel Products from Japan, WT/DS 228/AB/R, at paragraph 81.
- 62.
WTO, Antidumping Initiations, https://www.wto.org/english/tratop_e/adp_e/AD_InitiationsByExpCty.pdf Accessed on 31 Dec 2015.
- 63.
Appellate Body Report on United States—Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R (Hereinafter US—Oil Country Tubular Goods Sunset Reviews) at paragraphs 216–221; Panel Report on United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R (Hereinafter US—Gambling) at paragraph 6.197; Appellate Body Report on United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, at paragraph 129.
- 64.
Appellate Body Report on European Communities—Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R (Hereinafter EC and certain member States—Large Civil Aircraft), at paragraphs 792–794.
- 65.
See Appellate Body Report on United States—Ant-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS429/AB/R (Hereinafter US—Shrimp II (Viet Nam))—while the Appellate Body held that the USDOC “practice” in question did not violate WTO norms, by engaging in this analysis the Appellate Body indicates that a “practice” is capable of constituting a “measure” whose legality is capable of being assessed in WTO dispute settlement. For the panel’s treatment of issue, which expressly held the “practice” to be a “measure” capable of being challenged “as such”, see, Panel Report on United States—Shrimp II (Viet Nam) WT/DS429/AB/R, at paragraphs 7.94–7.131.
References
Abbott FM (2002a) The Doha declaration on the TRIPS agreement and public health: lighting a dark corner at the WTO. Journal of International Economic Law 5(2).
Abbott FM (2002b) The TRIPS agreement, access to medicines, and the WTO Doha ministerial conference. The Journal of World Intellectual Property 5(1).
Antidumping initiations. https://www.wto.org/english/tratop_e/adp_e/AD_InitiationsByExpCty.pdf, Accessed 25 Oct 2015.
Appellate Body Report on Australia—Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R.
Appellate Body Report on European Communities—Selected Customs Matters, WT/DS315/AB/R.
Appellate Body Report on European Communities—Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R.
Appellate Body Report on European Communities—Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India (Article 21.5) WT/DS141/AB/RW.
Appellate Body Report on European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS206/AB/R.
Appellate Body Report on European Communities—Measures Concerning Meat and Meat Products (Hormones) WT/DS26/AB/R; WT/DS48/AB/R.
Appellate Body Report on India—Measures Concerning the Importation of Certain Agricultural Products, WT/DS430/AB/R.
Appellate Body Report on India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R.
Appellate Body Report on India—Additional and Extra-Additional Duties on Imports from the United States, WT/DS360/AB/R.
Appellate Body Report on India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R.
Appellate Body Report on Japan—Measures Affecting the Importation of Apples, WT/DS245/AB/R.
Appellate Body Report on Turkey—Restrictions on Imports of Clothing and Textile Products, WT/DS34/R.
Appellate Body Report on United States—Ant-Dumping Measures on Certain Shrimp from Vietnam, WT/DS429/AB/R.
Appellate Body Report on United States—Anti-Dumping Measure on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R.
Appellate Body Report on United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R.
Appellate Body Report on United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R.
Appellate Body Report on United States—Shrimp II (Vietnam), WT/DS429/AB/R.
Appellate Body Report on United States—Subsidies on Upland Cotton, WT/DS267/AB/R.
Appellate Body Report on United States—Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R.
Appellate Body Report on United States—Measures Affecting Imports of Woven Woolen Shirts and Blouses from India, WT/DS33/AB/R.
Barnes S (2002-2003) Pharmaceutical patents and TRIPS: A Comparison of India and South Africa. Kentucky Law Journal 91.
Chimni BS (2010) China, India and the WTO Dispute Settlement System: Towards an interpretative strategy. In: Sornarajah M, & Wang J (eds.), China, India and the international economic order. Cambridge University Press, New York.
Customs Act, 1962.
Das K (2003) The Domestic Politics Of TRIPS: Pharmaceutical Interests, Public Health, And NGO Influence In India. Research Project on ‘Linking the WTO to the Poverty-Reduction Agenda’ as part of a DFID-Funded globalization and poverty research programme, Gujarat Institute of Development Research, Ahmedabad, India.
Department of Commerce, Notification No. 87 (RE-2013)/2009-2014.
Dreyfuss RC (2009) The Role Of India, China, Brazil And Other Emerging Economies In Establishing Access Norms For Intellectual Property And Intellectual Property Lawmaking. Institute for International Law and Justice Working Paper 5.
George MP (2015) IPRs figure prominently in ‘Trade Policy Review’ of WTO. SpicyIP, June 15, 2015, http://spicyip.com/2015/06/15780.html, Accessed 25 Oct 2015.
Gulati A & Sharma A (1995) Subsidy syndrome in Indian agriculture. Economic and Political Weekly 30(39).
Gazette of India, Extra-ordinary, October 13, 2014, G.S.R. 718 (E).
Gazette of India, Government Notification of Export Subsidies for Sugar.
German Interests in Polish Upper Silesia (Germany v. Poland), 1925 PCIJ (ser. A) No. 6.
G20 Agriculture Ministers Meeting Istanbul, 7-8 May 2015 Final Communiqué. https://g20.org/wp-content/uploads/2015/05/G20-Agriculture-Ministers-Final-Communique.pdf. Accessed 25 Oct 2015.
Hoda A, Gulati A (2005) Indian Agriculture, Food Security, and The WTO-AOA. Economic Reforms and Food Security: The Impact of Trade and Technology In South Asia 115-139.
Hoen E (2002) TRIPS, pharmaceutical patents and access to essential medicines: Seattle, Doha and beyond http://www.who.int/intellectualproperty/topics/ip/tHoen.pdf Accessed 25 Oct 2015.
International Law Commission, Articles on State Responsibility.
International Monetary Fund (2015) India’s economic picture brighter, but investment, structural Reforms key, http://www.imf.org/external/pubs/ft/survey/so/2015/car031115a.htm, Accessed 23 Oct 2015.
Intellectual Property Watch (2013) Bayer Will Appeal India Compulsory Licence On Its Cancer Drug, March 5, 2013, http://www.ip-watch.org/2013/03/05/bayer-will-appeal-india-compulsory-licence-on-its-cancer-drug/, Accessed 25 Oct 2015.
Kerry VB, Kelley L (2007) TRIPS, The Doha Declaration And Paragraph 6 Decision: What Are The Remaining Steps For Protecting Access to Medicines. Globalization And Health 3(3).
Lakshman S (2015) India, Brazil cross swords with U.S. at WTO. The Hindu, June 23, 2015, http://www.thehindu.com/business/india-brazil-cross-swords-with-us-at-wto/article7347311.ece, Accessed 25 Oct 2015.
New W (2015) IPRs feature prominently in WTO trade policy review of India. Intellectual Property Watch, June 3, 2015, http://www.ip-watch.org/2015/06/03/ip-rights-feature-prominently-in-wto-trade-policy-review-of-india/, Accessed 25 Oct 2015.
Patnaik JK (1992) India And The TRIPS: Some Notes On The Uruguay Round Negotiations. India Quarterly: A Journal of International Affairs 48(4) doi: 10.1177/097492849204800403.
Panagariya A (2002a) Developing Countries At Doha: A Political Economy Analysis. The World Economy 25(9).
Panagariya A (2002b) India at Doha: Retrospect and Prospect. Economic And Political Weekly 50(52).
Panel Report on Argentina—Measures Affecting Imports of Footwear, Textiles, Apparel and other Items, WT/DS56/R.
Panel Report on European Communities—Anti-Dumping Measure on Farmed Salmon From Norway, WT/DS337/R.
Panel Report on European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS206/AB/R.
Panel Report on India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R.
Panel Report on India—Additional and Extra-Additional Duties on Imports from the United States, WT/DS360/R.
Panel Report on India—Measures Affecting the Automotive Sector, WT/DS146R; WT/DS175/R.
Panel Report on India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R.
Panel Report on United States—Anti-Dumping and Countervailing Measures on Steel Plates from India, WT/DS206/R.
Panel Report on United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R.
Panel Report on United States—Measures Concerning the Importation, Marketing, Sale of Tuna and Tuna Products, WT/DS381/R.
Panel Report on United States—Anti-Dumping Measure on Shrimp from Ecuador, WT/DS335/R.
Panel Report on United States—Measures Affecting Imports of Woven Woolen Shirts and Blouses from India, WT/DS33/R.
Panel Report on United States—Measures Relating to Shrimp from Thailand, WT/DS343/R.
Patent Act, 1970.
Patent (Amendment) Act, 1999.
Patent (Amendment) Act, 2002.
Panel Report on United States—Sections 301-310 of the Trade Act 1974, WT/DS152/R.
Raju KD (2007) The debacle of Novartis patent case in India: Strict interpretation of patentability criteria under Article 27 of the TRIPS Agreement available online at SSRN 1030963. Accessed 25 Oct 2015.
Ray AS, Saha S (2009) India’s Stance At The WTO: Shifting Coordinates, Unaltered Paradigm. Jawaharlal Nehru University Discussion Paper in Economics http://www.jnu.ac.in/SIS/CITD/DiscussionPapers/WTO.pdf. Accessed 25 Oct 2015.
Watal J (ed) (2001) Intellectual Property Rights in the WTO and Developing Countries. Kluwer Academic Publishers.
World Bank data (2014) GDP, http://databank.worldbank.org/data/download/GDP.pdf, Accessed 23 Oct 2015.
World Bank data (2015) India Overview, http://www.worldbank.org/en/country/india/overview, Accessed 23 Oct 2015.
WTO International Trade Statistics (2014) table I.8, https://www.wto.org/english/res_e/statis_e/its2014_e/its14_world_trade_dev_e.pdf Accessed on 31 Dec 2015.
WTO Press Release (1998) India Should Keep Up With Its Trade Reforms To Ensure Strong Economic Growth, PRESS/TPRB/71.
WTO (1994) Agreement on Agriculture, LT/US/A-1A/2.
WTO (1994) Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, LT/UR/A-1A/3.
WTO (1994) Agreement on Safeguards, LT/UR/A-1A/8.
WTO (1994) Agreement on Subsidies and Countervailing Measures, LT/UR/A-1A/9.
WTO (1994) Agreement on Textiles and Clothing, LT/UR/A-1A/11.
WTO (1994) Agreement on the Application of Sanitary and Phytosanitary Measures, LT/UR/A-1A/12.
WTO (1994) Agreement on Trade-Related Aspects of Intellectual Property Rights, LT/UR/A-1C/IP/1.
WTO (1994) General Agreement on Tariffs and Trade 1994, LT/UR/1-1A/1/GATT/1.
WTO (1994) Understanding on Rules and Procedures Governing the Settlement of Disputes, LT/UR/A-2/DS/U/1.
WTO (1999) India—Quantitative Restrictions: Notification of Mutually Agreed Solution, WT/DS90/2/Add.1.
WTO (2001) Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2.
WTO (2015) Minutes of the Meeting of the Council for Trade-Related Intellectual Property Rights, IP/C/M/79/Add.1
Zimmerman TA (2007) WTO Dispute Settlement: General Appreciation and the Role of India. In: Padmaja K (ed.) WTO and Dispute Resolution. Icfai University Press, Hyderabad.
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Andersen, S.D., Deepak Raju (2016). India’s Initial WTO Disputes—An Analysis in Retrospect. In: Das, A., Nedumpara, J. (eds) WTO Dispute Settlement at Twenty. Springer, Singapore. https://doi.org/10.1007/978-981-10-0599-2_4
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