Pallavi Kishore - Centre for Trade and Development

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					A DEVELOPMENT READING OF
 INDIA’S CASES IN THE WTO
      Pallavi Kishore
         Introduction
India founder member of GATT (1947)
and WTO (1995)
WTO’s goals in Preamble –
development
Primary goal – market access
Protection – limited and temporary
India’s goals - market access and
protection leading to development
        Literature Review
Development and DSS   India and WTO (DSS)
  Mitchell              Chaisse
  Qureshi               Pratap
  Shaffer               Sinha
           Development and DSS
Mitchell - DS can contribute to liberalisation of markets for
products of export interest to developing members
-Use of S&DT desirable in interpreting WTO agreements but
difficult because S&DT too ambiguous to be a principle
Qureshi - Development can be taken into account through the
Preamble of the WTO and operative clauses of the agreements
-Adjudicating bodies must take into account the object and
purpose of the law
Shaffer - Development depends on market access
-DSS can be instrument of development
-Links market access to the DSS thus recognising the latter’s
role in enforcing market access commitments
-Substantive provisions in WTO agreements should be
interpreted to change developed country behaviour in favour of
developing countries i.e. to favour development
             India and WTO (DSS)
Chaisse - Deals with cases in which India was a respondent
-DSS is not developing country-friendly and S&DT has not been
able to correct this
-No analysis from the point of view of India’s goals or
development
Pratap - Explains India’s arguments and DSS decisions without
analysing them with reference to any underlying theme such as
market access or protection
-No analysis from the point of view of development
Sinha – Examines the question of state authority vis-à-vis the
authority of international organisations specifically the WTO
-Answers this question with reference to India
-International organisations such as the WTO lead to
strengthening of internal mechanisms required to deal with new
obligations created by them
-Concentrates on the internal changes brought about in India by
the WTO
                    Concerns
Question
-To what extent does the DSS fulfil India’s developmental goals
through litigation?
Technique
-Focus on the external relation between India and the WTO
through the prism of the WTO DSS
-Mainly analyse cases in which India is a complainant
-Analyse whether or not India’s arguments and the
interpretation given by thePanels and AB in India’s cases
furthers market access and/or protection leading to
development as stated in the Preamble and the WTO
Agreements
                  GATT Cases
GSP Case
AB – non-discriminatory conditions allowed as long as identical
treatment is granted to similarly-situated beneficiaries
Countries lose additional preferences if cannot fulfil conditions
How does AB criterion respond to « need » in ¶3c of Enabling
Clause?
AB’s use of international instruments not development-friendly
as developing countries may not be able to fulfil these
conditions
Shrimps Case
Article XX lets WTO-compliant measure hinder market access
Preamble mentions needs (153 members) and sustainable
development
AB preferred sustainable development without giving reasons
Developing countries cannot impose such measures
Role of interpreter assumes importance
        Rules of Origin Case
India - US wanted to protect its industry and favour imports
from the EC
Panel
-the fact of using RO to make quotas all the more tight was not
unjustified
-it was not possible to hold a law illegal simply because it
favoured one single member
-the fact of creating exceptions in favour of products from the
EC does not prove that these exceptions aim to favour imports
from the EC
-was asking India to prove USA’s intention to favour EC
-enunciated a « same » products standard
Preamble - neutral RO would not infringe members’ rights under
the GATT
Adjudicating bodies to interpret the ROA in the light of its
Preamble
                      AD Cases
Byrd Amendment Case
AB disagreed with the Panel that CDSOA encouraged producers to file
complaints because CDSOA did not say so in its text (eg. of textual
approach)
Effect - exporters would stop exporting to US market
Panel said CDSOA did not discourage price undertakings adopting
textual approach w.r.t. article 15
Effectiveness of article 15 depends on its interpretation
Steel Plate Case
Neither the US administrative practice nor the US Customs law obliged
the US to violate its WTO commitments (textual approach)
Ignores the effects of the operation of the practice or law which is
what actually impacts market access
Article 15 refers to developing country members and not their
enterprises (textual approach), thus rendering article 15 theoretical
because SAIL is a public company
First sentence of article 15 (special regard to developing members)
does not impose any obligation on members
Effectiveness of article 15 depends on its interpretation
     India’s Legal Strategy I
Consistency
a) Sophisticated - Violation of provision not justified by
exception
Turkey Textiles – XI, XIII, XXIV
US Shrimps – I:1, XI, XIII, XX
EC GSP – I:1, Enabling Clause
b) S&DT
Article 15 AD in 140, 141, 206, 217/234, Article 12 TBT in 233
S&DT always as Respondent
c) Against the entry of social values
US Shrimps vs. New EC GSP+
d) Against extraterritoriality
US Shrimps vs. New EC GSP+
e) Against violation of sovereignty
US Shrimps vs. New EC GSP+
    India’s Legal Strategy II
Inconsistency
a) Development
US Shrimps - needs of members at different levels of
development to be taken into consideration (Preamble)
EC GSP - Needs not to be taken into consideration
b) Discrimination
Rules of Origin - unjustifiable differential treatment of goods
from different countries
EC GSP - any distinction, even if neutral or between different
categories
c) Multilateralism
US Shrimps – for multilateral means
New EC GSP+ – against international instruments
                    Findings I
Topic too comprehensive and diverse for common factor
All cases about market access but involve very different issues
Active user
GATT 9, WTO 37
Complainant 17, Respondent 20, Third party 51
US 11, EC 15, developing countries recently (Pending with
Argentina, Brazil, SA; Mutual solution with Bangladesh)
Joint complainant with developed (217/234) and developing
(58) members
Concerned about developing country interests (246)
Involves commercial and systemic interests
Turnaround in the use of AD measures after losing as
Respondent
Meagre resources and so its achievements are laudable
Rule-based system (DSB Meetings, Frequent use of DSS, Press
Statements)
                   Findings II
Numerous barriers to market access
Diversity of trade barriers to target same industry
Textiles – ADA, XXIV GATT, ROA, ATC
Shrimps – ADA, XX GATT, ASCM
AD use most frequent and diverse
EC Bed Linen – determination of dumping
US Steel Plate - facts available
US Byrd Amendment/US Customs Bond – particular measure
AD potent weapon as regards coverage
Textiles, steel, pharmaceuticals, shrimps, general application
How to implement « empty » article 15 ruling in one’s favour
eg. in 141R? EC did not even appeal
S&DT for protection ineffective (WT/DS90 India – QRs)
Developed countries challenge measures they use against
developing countries eg. Zeroing which EC challenged in 294
and 350 (EC vs. US)
                  Conclusion
Panels and AB inconsistent in their approaches to interpretation
(textual approach abandoned in India - Autos)
Textual approach not always favourable to development
Textual approach used against development (CDSOA, Steel
Plate)
Shaffer
-legalised DSS requires a lot of resources
-interpretations of the panels and AB have been shaped by
economic powers
Even though there is no stare decisis in WTO law, panels and
AB frequently quote and rely on previous reports adopted by the
DSB. This proves the importance of development-friendly
interpretations
        THANK YOU
   Questions, Comments
kishorepallavi@hotmail.com

				
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posted:12/19/2011
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