‘Naming, Shaming and Filing’: Harnessing Indian Capacity for WTO Dispute Settlement

Abstract

Developing countries generally lack human and institutional capacity for analyzing the compatibility of trade measures taken by themselves and by other WTO members. As a result, the WTO legal order was significantly shaped by the United States and European Union and developing countries had very little participation in the dispute settlement process. India’s experience in overcoming some of these legal and institutional shortcomings in the matter of WTO dispute settlement is an interesting case study. India lost a few important cases such as the Mail Box (India-Patents) and the Balance of Payments (India-QR) in the decade of the late 1990s, the political overtones of which were felt for a long time. India relied on outside legal expertise for defending its interests in WTO dispute settlement and the costs involved in hiring external resources were often highlighted by opponents of trade and economic liberalization in India to argue against India’s participation in the WTO and the numerous trade agreements it administered. However, times have changed. India is now in a much better position to engage its own domestic lawyers and law firms in WTO dispute settlement. This article examines the measures taken by India, including the role of the government, private sector and inter-governmental organizations, in building legal capacity in India to augment its standing in WTO dispute settlement during the last few years and also the factors which have brought about this transformation. More recently, WTO cases involving India have exhibited a bottom-up approach of stakeholder participation where the government’s role is, to a greater extent, that of a handmaiden in meeting stakeholder demands. This article also analyzes the mechanisms available in India for identifying and challenging putative WTO inconsistent measures compared with the mechanisms available in the US, the EU and some key developing countries. On the one hand, this article will show how the WTO has shaped Indian strategies to engage with international dispute settlement, while on the other it addresses how India’s building of legal capacity can affect WTO legal ordering.